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 2:37 am

PART 1 OF 4

The Association of the Bar of the City of New York Committee on International Human Rights Committee on Military Affairs and Justice's Report

Human Rights Standards Applicable to the United States' Interrogation of Detainees

April, 2004

Table of Contents

• Executive Summary/Introduction
• I. THE CONVENTION AGAINST TORTURE
o A. CAT’s Definitions of – and Prohibitions against – Torture and Cruel, Inhuman or Degrading Treatment
o B. CAT’s Prohibition against Torture and CID Treatment as Interpreted by the U.N. Committee Against Torture
o C. U.S. Law Implementing CAT’s Prohibitions against Torture and Cruel, Inhuman or Degrading Treatment or Punishment
 1. U.S. Understandings and Reservations in Ratifying CAT
 2. The Implementation of CAT’s Prohibition against Torture in U.S. Legislation, Regulation and Case Law
 (a) U.S. Immigration Law and Torture
 (b) U.S. Extradition of Fugitives Who Face Threat of Torture
 (c) U.S. Implementation of CAT’s Criminal Law Requirements
 (d) U.S. Case Law Interpretations of Torture in Tort Claims
 (e) Conclusion: CAT’s Prohibition against Torture as Implemented in U.S. Legislation and Regulation
 3. CAT’s Prohibition against “Cruel, Inhuman or Degrading Treatment,” as Interpreted by United States Law
 (a) Fifth and Fourteenth Amendment Standards
 (b) Eighth Amendment Standards
o D. Enforcement of CAT under U.S. Law
 1. 18 U.S.C. §§ 2340 – 2340B
 2. Uniform Code of Military Justice
o E. Summary
• II. THE GENEVA CONVENTIONS
o A. Application of the Geneva Conventions to the Afghan Conflict Generally
o B. Geneva III
 1. Relevant Legal Standards
 2. The United States’ Position
 3. Critiques of the United States’ Position
 (a) Article 5 Presumes POW Status Until the Determination of Status by a Competent Tribunal
 (b) The Taliban Detainees Were “Regular Armed Forces” and, therefore, Are Encompassed by Article 4(A) of Geneva III
 (c) Policy Arguments Favoring Broad Grant of POW Status to Non-Civilian Detainees from the War in Afghanistan
o C. Geneva IV
o D. Summary
• III. OTHER INTERNATIONAL LEGAL STANDARDS
o A. The International Covenant on Civil and Political Rights
 1. Relevant Legal Standards
 2. Enforcement
 (a) U.S. Courts
 (b) The Human Rights Committee
o B. Organization of American States’ Instruments
 1. Relevant Legal Standards
 2. Enforcement
o C. Customary International Law and Jus Cogens
 1. Relevant Legal Standards
 2. Enforcement
• IV. SHOULD EXCEPTIONS BE MADE FOR THE “WAR ON TERROR”?: THE EXPERIENCE OF OTHER JURISDICTIONS
o A. Legal Challenges to Interrogation Practices in Northern Ireland and Israel
 1. The Republic of Ireland v. The United Kingdom
 2. Israeli Supreme Court Judgment Concerning The Legality Of The General Security Service’s Interrogation Methods
o B. The Legal and Moral Implications of the “Ticking Bomb” Scenario
• THE COMMITTEE ON INTERNATIONAL HUMAN RIGHTS
• THE COMMITTEE ON MILITARY AFFAIRS AND JUSTICE
• APPENDIX A
o Letter 1: To President George W. Bush from Kenneth Roth (Human Rights Watch), dated 12/26/02
o Letter 2: To the Hon. George W. Bush from William Schulz (Amnesty Intl.), Kenneth Roth (Human Rights Watch), Gay McDougall (Intl. Human Rights Law Group), Louise Kantrow (Intl. League for Human Rights), Michael Posner (Lawyers Cmte. for Human Rights), Robin Phillips (Minn. Advocates for Human Rights), Len Rubenstein (Physicians for Human Rights), Todd Howland (RFK Memorial Center for Human Rights), dated 1/31/03
o Letter 3: To President George Bush from Ernest Duff, National Consortium of Torture Treatment Programs, dated 2/5/03
o Letter 4: To the Hon. Condoleezza Rice from Patrick Leahy (U.S. Senator), dated 6/2/04
o Letter 5: To Scott W. Muller (Genl. Counsel, CIA) from Miles F. Fischer (Chair, The Assoc. of the Bar of the City of N.Y.) and Scott Horton (Chair, Cmte. on Intl. Human Rights), dated 6/4/03
o Letter 6: To William J. Haynes, II (Genl. Counsel, DOD) from Patrick Leahy (U.S. Senator), dated 9/9/03
o Letter 7: To Kenneth Roth (Human Rights Watch) from William J. Haynes II (Genl. Counsel DOD), dated 4/2/03
o Letter 8: To Miles F. Fischer and Scott Horton (Assoc. of the Bar of the City of N.Y.) from Scott W. Muller (Genl. Counsel CIA) dated 6/23/03
o Letter 9: To Patrick J. Leahy (U.S. Senator) from William J. Haynes II (Genl. Counsel DOD), dated 6/25/03

EXECUTIVE SUMMARY/INTRODUCTION

This Report is a joint effort of the Association of the Bar of the City of New York’s Committees on International Human Rights and Military Affairs and Justice, undertaken to consider allegations – reported in the press and by human rights and humanitarian organizations conducting their own investigations – that individuals detained by the United States at its military and intelligence facilities in connection with the initial War in Afghanistan and the subsequent ongoing conflict in Afghanistan, are being subjected to interrogation techniques that constitute torture or cruel, inhuman or degrading treatment. [1] We note at the outset, however, that although this project was initially motivated by allegations regarding the treatment of detainees from the War in Afghanistan, the international law and human rights standards discussed herein – with the exception of Geneva Convention protections applicable only to situations of international armed conflict – apply broadly and with equal force to the treatment of detainees captured in other situations, including detainees picked up in other countries in connection with the broader “War on Terror.” [2] In this Report, we will examine the international legal standards governing United States military and civil authorities in interrogating detainees and propose ways of assuring that those standards are enforced.

THE ALLEGED INTERROGATION PRACTICES

These allegations first surfaced in December 2002, when the U.S. military announced that it had begun a criminal investigation into the death of a 22 year-old Afghan farmer and part-time taxi driver who had died of “blunt force injuries to lower extremities complicating coronary artery disease” while in U.S. custody at Bagram Air Force Base in Afghanistan. [3] Since then, details about interrogation techniques allegedly employed at U.S. detention facilities – most of which are off-limits to outsiders and some of which are in undisclosed locations – have come from government officials speaking on the condition that they would not be identified and from the few prisoners who have been released. Some examples of “stress and duress” interrogation “techniques” reportedly being practiced by U.S. Department of Defense (“DOD”) and Central Intelligence Agency (“CIA”) personnel at U.S. detention facilities include: forcing detainees to stand or kneel for hours in black hoods or spray-painted goggles, 24-hour bombardment with lights, “false-flag” operations meant to deceive a captive about his whereabouts, withholding painkillers from wounded detainees, confining detainees in tiny rooms, binding in painful positions, subjecting detainees to loud noises, and sleep deprivation. [4] In addition, the U.S. is reportedly “rendering” suspects to the custody of foreign intelligence services in countries where the practice of torture and cruel, inhuman or degrading treatment during interrogation is well-documented. [5]

THE ADMINISTRATION'S RESPONSES

The Association and others have written to U.S. government officials to ask whether there is any factual basis for these allegations and whether steps are being taken to ensure that detainees are interrogated in accordance with U.S. law and international standards prohibiting torture and “cruel, inhuman or degrading” treatment falling short of torture (“CID”). [6]

In response to inquiries from Human Rights Watch, U.S. Department of Defense General Counsel William J. Haynes has stated that: “United States policy condemns and prohibits torture” and that, when “questioning enemy combatants, U.S. personnel are required to follow this policy and applicable laws prohibiting torture.” [7] CIA General Counsel Scott W. Muller, citing to the need to protect intelligence sources and methods, has responded to our inquiries by stating only that “in its various activities around the world the CIA remains subject to the requirements of U.S. law” and that allegations of unlawful behavior are reported by the CIA to the Department of Justice and are subject to investigation. [8]

In response to an inquiry made by U.S. Senator Patrick J. Leahy regarding U.S. policy, Haynes stated that U.S. policy entails “conducting interrogations in a manner that is consistent with the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), as ratified by the U.S. in 1994, and with the Federal anti-torture statute, 18 U.S.C. §§ 2340 - 2340A, which Congress enacted to fulfill U.S. obligations under the CAT.” [9] Haynes also stated that U.S. policy is “to treat all detainees and conduct all interrogations, wherever they may occur, in a manner consistent with” the U.S. obligation, pursuant to Article 16 of CAT, namely, “to prevent other acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture” insofar as such treatment is “prohibited by the Fifth, Eighth, and/or Fourteenth Amendments.” [10] Haynes assured Senator Leahy “that credible allegations of illegal conduct by U.S. personnel will be investigated and, as appropriate, reported to proper authorities.” [11] Furthermore, Haynes stated that the U.S. does not “expel, return (‘refouler’) or extradite individuals to other countries where the U.S. believes it is ‘more likely than not’ that they will be tortured,” that “United States policy is to obtain specific assurances from the receiving country that it will not torture the individual being transferred to that country,” and that “the United States would take steps to investigate credible allegations of torture and take appropriate action if there were reason to believe that those assurances were not being honored.” [12]

Both Haynes and Muller have declined, however, to give details concerning the specific interrogation methods used by U.S. personnel at U.S. military and CIA detention facilities.

LEGAL STANDARDS PROHIBITING TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT

Although we are not in a position to investigate the factual basis for the allegations of torture and cruel, inhuman or degrading interrogation practices at U.S. detention facilities that have been made, we can describe the legal principles which should guide our military and intelligence personnel in their conduct. Accordingly, in this Report we examine the international and U.S. law standards against which the interrogation practices used on detainees should be assessed. We also address the question of whether there are any circumstances posed by the post-September 11 world in which abrogation of our country’s obligations to prevent and punish torture and cruel, inhuman or degrading treatment should be permitted in the interrogation of terrorist suspects.

The Convention Against Torture.

First and foremost, the U.S. obligation to prohibit and prevent the torture and cruel, inhuman or degrading treatment of detainees in its custody is set forth in the Convention Against Torture And Other Cruel, Inhuman, or Degrading Treatment (“CAT”), to which the U.S. is a party. [13] When the U.S. ratified CAT in 1994, it did so subject to a reservation providing that the U.S. would prevent “cruel, inhuman or degrading treatment” insofar as such treatment is prohibited under the Fifth, Eighth, and/or Fourteenth Amendments. [14] Thus, the U.S. is obligated to prevent not only torture, but also conduct considered cruel, inhuman or degrading under international law if such conduct is also prohibited by the Fifth, Eighth and Fourteenth Amendments. In interpreting U.S. obligations, we look to the U.N. Committee Against Torture’s interpretations of CAT as well as U.S. case law decided in the immigration and asylum law context, under the Alien Tort Claims and Torture Victim Protection Acts and concerning the treatment of detainees and prisoners under the Fifth, Eighth and/or Fourteenth Amendments. We also examine the procedural mechanisms available under U.S. law to punish violations of CAT – including prosecution under federal criminal law (18 U.S.C. §§ 2340 - 2340A) and the Uniform Code of Military Justice (“UCMJ”).

Other International Legal Standards which Bind the United States

While there is a dearth of U.S. case law applying CAT’s prohibition against torture and cruel, inhuman or degrading treatment in the interrogation context, there is a wealth of international law sources which offer guidance in interpreting CAT. Some of these international legal standards are, without question, binding on the U.S., such as: the International Covenant on Civil and Political Rights (the “ICCPR”), [15] the law of jus cogens and customary international law. Another international legal instrument which has been ratified by the U.S. and is relevant to the interrogation practices being examined by this Report is the Inter-American Declaration on the Rights and Duties of Man. [16] Other sources, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, [17] also provide guidance.

The applicability of the Geneva Conventions to the detainees from the War in Afghanistan, however, presents a more contentious issue. The Administration’s official position is that the Geneva Conventions do not apply to Al Qaeda detainees, and that neither the Taliban nor Al Qaeda detainees are entitled to prisoner of war (“POW”) status thereunder. Nevertheless, the Administration has stated that it is treating such individuals “humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949,” and that the detainees “will not be subjected to physical or mental abuse or cruel treatment.” [18] The Administration has never explained how it determines what interrogation techniques are “appropriate” or “consistent with military necessity,” or how it squares that determination with U.S. obligations under human rights and customary international law. For POW and civilian detainees who meet the relevant criteria of Geneva Convention (III) Relative to the Treatment of Prisoners of War (“Geneva III”) and Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (“Geneva IV”), respectively, all coercion is prohibited. [19] Moreover, any detainee whose POW status is in doubt is entitled to a hearing and determination by a competent tribunal and, pending such determination, any such detainee must be treated as a POW. Concern for the safety of U.S. forces weighs in favor of extending POW status liberally. At a minimum, all detainees – regardless of POW or civilian status – are entitled to humane treatment and prompt hearings under human rights and customary international law, including the protections of Article 3 common to all four Geneva Conventions (“Common Article 3”) and Article 75 of the Protocol Additional to the Geneva Conventions of 12 August 1949 and Related to the Protection of Victims of International Armed Conflicts (“Additional Protocol I”). [20] We urge the U.S. to promptly establish proper screening procedures for all detainees, whether or not they served with forces that met the specific criteria of Geneva III.

Legal Standards which the United States Should Look to for Guidance

Other relevant sources of law, such as the seminal 1999 Israeli Supreme Court decision on interrogation methods employed by the Israeli General Security Service, Judgment Concerning The Legality Of The General Security Service’s Interrogation Methods, [21] and decisions of the European Court of Human Rights, although not legally binding on the U.S., also offer useful guidance in our interpretation of CAT. These foreign decisions indicate that the “War on Terror” is not unprecedented. As the Israeli and Northern Ireland experiences demonstrate, the U.S. is not the only country to have faced terrorism within its borders, despite the unique tragedy of September 11 and the potential threat of weapons of mass destruction that could expand the loss of life by orders of magnitude. We can and should learn from the experience of other countries whose courts have grappled with the need to permit effective interrogation while at the same time upholding the standards of human rights and the rule of law.

Standards in the Time of Terror

There is an inherent tension between the need to obtain potentially life-saving information through interrogation of terrorist suspects and the legal requirement of upholding the standards set forth in CAT. We grappled with the question of whether there are any circumstances under which torture or cruel, inhuman or degrading treatment would be permissible in a post-September 11 world. While we acknowledge the real danger posed to the United States by Al Qaeda and other terrorist organizations, we concluded that there are no such exceptions to CAT’s absolute prohibition of torture.

Condoning torture under any circumstances erodes one of the most basic principles of international law and human rights and contradicts our values as a democratic state. Permitting the abuse of detainees in U.S. custody, perhaps under so-called “torture warrants,” not only harms the detainees themselves; it compromises the moral framework of our interrogators and damages our society as a whole. If U.S. personnel are allowed to engage in brutal interrogation methods which denigrate the dignity and humanity of detainees, we sanction conduct which we as a nation (along with the international community) has clearly determined is wrong and immoral. Accordingly, we unanimously condemn the torture of detainees under any circumstances. We note that U.S. constitutional jurisprudence on “cruel, inhuman or degrading” treatment, which has been made relevant to CAT by the U.S. reservation, is an extremely important source of guidance on this subject. On the other hand, much of this jurisprudence evolved in the context of domestic criminal justice administration, and how these precedents would be applied in a case arising out of the interrogation and detention covered by this Report is, in the absence of more definitive authority, a matter of some speculation.

Recommendations

We applaud the statements in William Haynes’ June 25, 2003 letter to Senator Leahy affirming the policy of the U.S. regarding its commitment to CAT. To make that policy meaningful, we make the following recommendations:

1. Training and Education. All law enforcement personnel, civilian or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of anyone under any form of detention or imprisonment should be informed and educated regarding the prohibition against torture and cruel, inhuman or degrading treatment, as applied in practice. This requires, as provided in Article 11 of CAT, that the U.S. keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of such detainees. [22] Above all, commanders should not condone non-compliance nor permit an environment in which troops are encouraged to provide lip service to compliance but yet think that non-compliance is acceptable.

Given that CIA personnel are not generally subject to the UCMJ, possibly not even when accompanying the armed forces in the field, special procedures should be available to provide reasonable assurance that compliance with CAT is being taught and maintained by intelligence agencies. That assurance might best be provided by the applicable committees of the Congress exercising oversight responsibility in conjunction with the inspectors general of the applicable agencies.

2. Prompt Investigation of Violations. As required by Article 12 of CAT, the U.S. must ensure that allegations of abusive conduct are taken seriously and are fully and impartially investigated. [23] Thus, any individual who alleges that he or she has been subjected to torture must be provided with a meaningful opportunity to complain to, and to have his/her case promptly and impartially examined by, competent authorities. Steps must be taken to ensure that the complainant and witnesses are protected against all ill-treatment and intimidation.

3. Expand the Scope and Reach of Section 2340. Consistent with its obligation under Article 4 of CAT to ensure that all acts of torture are offenses under its criminal law [24] and since 18 U.S.C. § 2340 does not, by its terms, apply to acts constituting torture committed in extraterritorial detention centers under U.S. jurisdiction – the U.S. must expand the geographic reach of Section 2340 so that the prescriptions of CAT are applicable at all U.S. detention centers.

4. Fully Utilize the UCMJ. The U.S. must more fully utilize the procedures and protections available under the UCMJ to prosecute all violations of CAT by the armed forces or others subject to the UCMJ.

5. Independent Investigation of Human Rights Compliance in Other Countries. As provided by Article 3 of CAT, the U.S. must not “render” detainees to other countries where there are substantial grounds for belief that the detainees would be in danger of being subjected to torture. [25] In determining whether there are “substantial grounds for belief” that a detainee would be in danger of torture if rendered to another country, U.S. authorities must take into account all the relevant considerations concerning that country, including independently investigating whether there exists a consistent pattern of gross, flagrant or mass violations of human rights in the country. [26]

6. Grant POW Status to Detainees Whose Status is in Doubt and Possibly as a Matter of Policy. The U.S. should adhere to Geneva III’s requirement that any detainee whose POW status is in “doubt” is entitled to POW status – and, therefore, cannot be subjected to coercive treatment – until a “competent tribunal,” which must be convened promptly, determines otherwise. [27] We urge the U.S. to consider the policy grounds for extending POW treatment to regular force combatants, whether or not legally required to do so, as it has done in prior conflicts.

7. Prompt Screening and Hearings for All Detainees. In keeping with the spirit of the Geneva Conventions and human rights law, we urge the U.S. to provide proper screening procedures and hearings to all detainees. [28]

We now turn to a more detailed discussion of the international standards applicable to interrogation procedures.

THE CONVENTION AGAINST TORTURE

The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) is the primary source of international law relevant to the treatment of detainees. [29] CAT has been ratified by the U.S., and its prohibitions against torture and cruel, inhuman or degrading treatment or punishment have been implemented in our domestic law.

Specifically, U.S. law implements CAT’s prohibition against torture in the immigration and asylum contexts, under the Alien Tort Claims and Torture Victim Protection Acts, by criminal statute and under the UCMJ. Under CAT, the U.S. is also obligated to prevent “cruel, inhuman or degrading treatment or punishment” as defined in international law; however, by express reservation, the U.S. interprets this obligation in keeping with standards of treatment required by the Fifth, Eighth and Fourteenth Amendments. Accordingly, under CAT, American military and intelligence personnel involved in the interrogation of detainees may not torture those detainees, nor may they subject them to cruel, inhuman or degrading treatment that is, or would be, forbidden under the Fifth, Eighth and/or Fourteenth Amendments.

CAT'S DEFINITIONS OF -- AND PROHIBITIONS AGAINST -- TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT

CAT defines and prohibits torture, as defined, and cruel, inhuman or degrading treatment or punishment in general terms. In addition, it also sets out steps ratifying countries must take to prevent, investigate, and criminalize acts of torture; [30] prohibits the extradition or other rendering (also known as “refoulement”) of a person to a country that would likely subject such person to torture; [31] creates a Committee to oversee the implementation of CAT by ratifying countries; and sets forth procedures for inquiries, individual communications, and inter-State complaints.

CAT’s preamble acknowledges that torture and other cruel, inhuman or degrading treatment or punishment are already prohibited under Article 5 of the Universal Declaration of Human Rights and Article 7 of the ICCPR. Thus, rather than simply mirroring the prohibitions from these instruments, Article 1 of CAT provides additional guidance to states parties in preventing and punishing torture by setting forth an explicit definition of torture:

…torture means 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.


This definition makes it clear that the result of torture need not be physical pain or suffering, but can also be mental. In addition, torture is defined to include such conduct undertaken for the purpose of obtaining information. Finally, the prohibition is not directed at private citizens, acting independently of government; it applies rather to acts committed by government officials and agents, or persons acting with official consent or acquiescence.

CAT’s prohibition of torture is absolute. An order from a superior officer or a public authority may not be invoked as a justification of torture. Specifically, Article 2(2) provides: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Although CAT does not provide a definition of CID punishment or treatment, Article 16 requires ratifying countries to prevent “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture….” This language suggests that cruel, inhuman or degrading treatment is on a continuum with torture.

CAT requires each signatory state to prevent the commission of the prohibited acts within any territory under the state’s jurisdiction. Specifically, each ratifying country must ensure that any official who may be involved in the interrogation of anyone under any form of detention or imprisonment is informed of and educated about the prohibitions against torture and cruel, inhuman or degrading treatment. CAT also requires each ratifying country to ensure that allegations of torture and CID treatment are fully and impartially investigated. See CAT Articles 12 and 16(1).

CAT'S PROHIBITION AGAINST TORTURE AND CID TREATMENT AS INTERPRETED BY THE U.N. COMMITTEE AGAINST TORTURE

The U.N. Committee Against Torture, created by CAT, is charged with monitoring implementation of the treaty by ratifying countries through the determination of individual complaints, considering country reports submitted under CAT, and resolving inter-State disputes. Given the importance of international standards in interpreting U.S. domestic law [32] as well as the recent Lawrence v. Texas decision, in which the U.S. Supreme Court expressly looked to foreign and international law for guidance, [33] U.N. Committee decisions are relevant to the assessment of whether the actions of U.S. personnel involved in the interrogation of detainees constitute torture or cruel, inhuman or degrading treatment.

The U.N. Committee has concluded that the following acts [34] constitute torture under CAT:

• daily beatings and detaining someone in a small, uncomfortable space for two weeks; [35]
• forcing someone to sleep on the floor of a cell while handcuffed following interrogation; [36]
• in severe cases, sleep deprivation; [37] and
• the threat of torture. [38]

Furthermore, the U.N. Committee has recommended that the use of a blindfold during questioning be expressly prohibited. [39] More generally, the U.N. Committee has expressed concern that States have defined torture too narrowly, covering only “systematic blows or other violent acts.” [40] The U.N. Committee has also expressed concern whether the penal law of one State was too narrow in defining torture because it failed to prohibit “certain aspects of torture, such as psychological pressure, threats and intimidation.” [41]

The U.N. Committee has found that the following acts amount to cruel, inhuman or degrading treatment or punishment under CAT:

• depriving someone of food and/or water; [42]
• in some cases, binding someone in a restraint chair; [43]
• the use by prison authorities of instruments of physical restraint that may cause unnecessary pain and humiliation;[44] and
• long periods of detention (two weeks or more) in detention cells that are sub-standard (this conduct may amount to torture if the period of detention is extremely long).[45]

The U.N. Committee has found that the following acts may amount to torture when used in combination with other forms of CID:

• being restrained in very painful conditions;
• being hooded;
• the sounding of loud music for prolonged periods;
• sleep deprivation for prolonged periods;
• violent shaking; and
• using cold air to chill. [46]

In sum, the U.N. Committee Against Torture has indicated that the classification of treatment as CID or torture is often a matter of severity, intensity, and the totality of the circumstances. Combining several forms of cruel, inhuman or degrading treatment will frequently amount to torture, and ratifying countries are required under CAT to refrain from all such practices, whether they reach the level of severity to be considered torture or not. Thus, according to U.N. Committee jurisprudence, alleged interrogation practices such as forcing detainees to stand or kneel for hours in black hoods or spray-painted goggles, 24-hour bombardment with lights, binding detainees in painful positions, withholding painkillers from wounded detainees, and subjecting detainees to loud noises and sleep deprivation, at a minimum, constitute cruel, inhuman or degrading treatment and may, depending on the circumstances, rise to the level of torture. U.N. Committee decisions critical of blindfolding, psychological pressure and threats and intimidation strongly suggest that “false-flag” operations meant to deceive detainees about their whereabouts and “stress and duress” interrogation techniques are also prohibited.

U.S. LAW IMPLEMENTING CAT'S PROHIBITIONS AGAINST TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

The Senate adopted a resolution of advice and consent to U.S. ratification of CAT, subject to the declaration that it be deemed non-self-executing, on October 27, 1990. [47] The U.S. ratified CAT in October 1994, and CAT entered into force with respect to the United States on 20 November 1994. [48] The implementation in U.S. immigration, extradition, criminal and civil tort law of CAT’s prohibition against torture, as well as the express application of U.S. constitutional standards to CAT’s prohibition against CID treatment, indicates that many of the interrogation practices allegedly being used by the U.S. against detainees may be prohibited under international and U.S. law.

U.S. Understandings and Reservations in Ratifying CAT

The United States conditioned its ratification of CAT upon certain understandings related to CAT’s definition of torture in Article 1. In one such understanding, the U.S. specified that mental pain or suffering within the meaning of “torture” refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality. [49] Another U.S. understanding pertains to defects in criminal procedure: non-compliance with applicable legal procedural standards (such as Miranda warnings) does not per se constitute “torture.” [50]

When ratifying CAT, the United States also took the following reservation: “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 Fourteenth Amendments to the Constitution of the United States.” [51]

The Implementation of CAT’s Prohibition against Torture in U.S. Legislation, Regulation and Case Law

CAT’s prohibition of official acts amounting to torture has been implemented in the United States through legislation, regulations and case law pertaining to, inter alia, (1) immigration, (2) claims of torture in removal and extradition proceedings, (3) criminal sanctions for torture, and (4) tort claims alleging torture. Through the application of these implementing laws and regulations, U.S. courts have interpreted CAT’s substantive provisions in a variety of contexts. [52]

U.S. Immigration Law and Torture

As previously noted, all countries that ratify CAT are obligated to ensure that detainees are not deported or extradited to countries where they are likely to be tortured. In 1998, the United States enacted the Foreign Affairs Reform and Restructuring Act of 1998, § 2242, Pub. L. No. 105-277, Div. G, 112 Stat. 2681, 2681-822 (Oct. 21, 1998) (the “FARR Act”), implementing this obligation. In 1999, the Immigration and Naturalization Service (“INS”) promulgated regulations effectuating the FARR Act in the immigration and asylum context, providing aliens in exclusion, deportation or removal proceedings with grounds to seek withholding of removal based on CAT. See 8 C.F.R. § 208.18 (2004), et seq. These regulations incorporate CAT’s definition of torture verbatim, with the following qualification: “Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.” See 8 C.F.R. § 208.18(a)(2) (2004). These regulations further define mental pain or suffering consistently with the U.S. understandings to CAT, and exclude from the definition of torture acts which result in “unanticipated or unintended severity of pain and suffering.” See 8 C.F.R. § 208.18(a)(5) (2004).

A number of federal court cases and Board of Immigration Appeals (“BIA”) decisions address torture claims in the immigration context. The BIA has held that the following abuses of detainees and prisoners, for example, amount to torture: “‘suspension for long periods in contorted positions, burning with cigarettes, sleep deprivation, and…severe and repeated beatings with cables or other instruments on the back and on the soles of the feet,’…beatings about the ears, resulting in partial or complete deafness, and punching in the eyes, leading to partial or complete blindness.” Matter of G-A-, 23 I & N Dec. 366, 370 (BIA 2002) (internal citations omitted). [53] Furthermore, persons seeking asylum or withholding of removal have successfully challenged deportation under Sections 208 and 241(b)(3) of the Immigration & Nationality Act (“INA”) when they have a well-founded fear of future persecution. Although “persecution” is not defined in the INA, it is understood to encompass treatment falling short of torture.

U.S. Extradition of Fugitives Who Face Threat of Torture

In the extradition context, torture claims are governed by regulations enacted by the Department of State under the FARR Act. Under these regulations, individuals sought for extradition may present a claim that they are likely to be tortured if surrendered to the requesting state. These claims are considered by the U.S. Secretary of State, who is responsible for implementing CAT’s obligation not to extradite an individual to a State where he or she is in danger of being subject to torture. Specifically, section 95 of 22 C.F.R. (2004) provides, in relevant part, that the Secretary of State must consider whether a person facing extradition from the U.S. “is more likely than not” to be tortured in the State requesting extradition, and that appropriate policy and legal offices must review and analyze the information relevant to the torture allegation. The extradition regulations, and the decisions interpreting them, [54] demonstrate that U.S. administrative bodies and courts view CAT’s prohibition against extradition to torture as binding on the U.S. even when the extraditable individual is accused of wrongdoing.

U.S. Implementation of CAT’s Criminal Law Requirements

18 U.S.C. §§ 2340 and 2340A were enacted to fulfill CAT’s requirement that each ratifying country criminalize all acts of torture, including attempts to commit torture and complicity in torture. [55] Section 2340 defines torture as:

an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control. . .


“Severe mental pain or suffering” is also defined, using the same wording as the U.S. understandings concerning Article 1 of CAT set forth in Section I(C)(1) above. See 18 U.S.C. § 2340. As discussed further below, however, this statute applies only to U.S. nationals (or others present in the U.S.) who have committed or attempted or conspired to commit acts of torture “outside of the United States.” [56]

U.S. Case Law Interpretations of Torture in Tort Claims

Two U.S. statutes provide for civil suits against those who commit acts of torture abroad. The Alien Tort Claims Act of 1789 (“ATCA”), 28 U.S.C. § 1350, states that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The Torture Victim Protection Act of 1991 (“TVPA”), 28 U.S.C. § 1350, provides that:

[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation – (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death. [57]


The TVPA extends a civil remedy to U.S. citizen torture victims, while the ATCA provides a remedy for aliens only.

U.S. courts applying the ATCA and TVPA have found that the following acts constitute torture: subjecting detainees to interrogation sessions lasting 14 hours (Xuncax v. Gramajo, 886 F. Supp. 162, 170 (D. Mass 1995)); beating with hands (Tachiona v. Mugabe, 234 F. Supp. 2d 401, 420-423 (S.D.N.Y. 2002); Cabiri v. Assasie-Gyimah, 921 F. Supp. 1189, 1191, 1196 (S.D.N.Y. 1996); Abebe-Jira v. Negewo, 72 F.3d 844, 845 (11th Cir. 1996)); threatening with death (Abebe-Jira v. Negewo, 72 F.3d 844, 845 (11th Cir. 1996)); and using techniques to exacerbate pain or injury (Abebe-Jira v. Negewo, 72 F.3d 844, 845-6 (11th Cir. 1996)).

Conclusion: CAT’s Prohibition against Torture as Implemented in U.S. Legislation and Regulation

U.S. domestic laws prohibiting, or providing a cause of action to victims of, torture are consistent with the standards of CAT. However, these U.S. statutes and regulations are limited to specific contexts – such as, refugee claims, extradition of foreign fugitives, criminalizing acts of torture committed outside the U.S. by U.S. officials, and providing compensation to victims of torture committed by aliens. Accordingly, the U.S. has yet to fulfill its obligation, under CAT, to enact laws which adequately prevent U.S. officials and individuals acting with their consent from subjecting any detainee to torture and which punish such conduct wherever it occurs.

CAT’s Prohibition against “Cruel, Inhuman or Degrading Treatment,” as Interpreted by United States Law.

As previously noted, the U.S.’s reservation to Article 16 of CAT provides that the United States considers itself bound by Article 16 only insofar as CID treatment is understood to mean “the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth and Fourteenth Amendments.”

The Senate Foreign Relations Committee report states that this reservation is the outgrowth of concern that “degrading treatment or punishment . . . has been interpreted as potentially including treatment that would probably not be prohibited by the U.S. Constitution” and cites, as an example of what the United States would not find “degrading” under the U.S. Constitution, a holding by the European Commission of Human Rights that the refusal of authorities to give formal recognition to an individual’s change of sex might constitute degrading treatment. [58] This explanation suggests that the reservation was intended to prevent the importation of foreign social values or mores into U.S. law, rather than any view that international norms of CID treatment are out of step with U.S. law.

In assessing interrogation conduct under Article 16 of CAT, the U.S. should look to international standards defining cruel, inhuman or degrading treatment. If such conduct is prohibited under international law, the U.S. is bound to prevent such conduct unless it would not be prohibited under the Fifth, Eighth and Fourteenth Amendments. The Committees take note that much of the case law under the three Amendments arises in the context of domestic criminal justice proceedings. How this jurisprudence would be applied in a case relating to the detention and interrogation of foreign combatants is not completely clear. For instance, on the one hand some of the special protections provided in the American criminal justice system with respect to interrogations would be of doubtful applicability, particularly considering an asserted state interest in national security. On the other, the absence of a legitimate state interest in punishment might mandate a higher standard of treatment of detainees generally.

Fifth and Fourteenth Amendment Standards

The Constitution’s guarantee of due process forbids compulsion to testify, at least for domestic law enforcement purposes, by fear of hurt, torture or exhaustion. See Adamson v. California, 332 U.S. 46 (1947) (armed Texas Rangers on several successive nights took defendant from county jail into the woods, whipped him, asked him each time about a confession, interrogated him from approximately 11 p.m. to 3 a.m. and warned him not to speak to anyone about the nightly trips); Brown v. Mississippi, 297 U.S. 278 (1936) (confessions obtained by mock executions and whippings); Ashcraft v. Tennessee, 322 U.S. 143, 154 (1944) (defendant was taken into custody by police officers and for 36 hours thereafter was held incommunicado, without sleep or rest, and interrogated without respite by relays of officers, experienced investigators, and highly trained lawyers); see also Ashcraft v. Tennessee, 327 U.S. 274 (1946). However, the presence of unlawful police coercion motivated by “immediate necessity to find the victim and save his life” to extract a confession has been found by one appeals court to be insufficient to exclude a subsequent confession. [59]

Due process also prohibits actions taken under color of law that are “so brutal and offensive to human dignity” that they “shock the conscience.” [60] The Supreme Court has given content to the phrase “shocks the conscience” by reference to the spectrum of fault standards in tort law. Intentional infliction of injury unjustifiable by any government interest is the sort of official action which could rise to the conscience-shocking level. [61] All applicable sources of law are consistent in prohibiting such extreme conduct.

Eighth Amendment Standards

The Eighth Amendment prohibits “cruel and unusual punishments.” [62] In the context of law enforcement, U.S. courts have long held that the norms articulated under the Cruel and Unusual Punishment Clause establish a minimum level of protection, applicable even to pretrial detainees. [63]

While the Supreme Court initially interpreted the Eighth Amendment as prohibiting only barbaric or torturous punishments, this interpretation was early broadened in two respects: (i) to prevent disproportionate punishments (Weems v. United States, 217 U.S. 349 (1910)) and (ii) to address non-physical forms of cruel and unusual punishment (e.g., Trop v. Dulles, 356 U.S. 86 (1958) (in case involving denationalization as a punishment for desertion from the United States Army, the Court noted that “evolving standards of decency that mark the progress of a maturing society” should inform interpretation of the Eighth Amendment)). In 1947, the Supreme Court recognized that wanton or unnecessary infliction of pain also constitutes cruel and unusual punishment. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947).

In cases brought by prisoners under the Eighth Amendment alleging that excessive force was used against them by government officials, courts consider both the objective component (whether the wrongdoing was “harmful enough” to implicate the Eighth Amendment) and the subjective component (whether the officials acted with a sufficiently culpable state of mind) of the challenged conduct. Hudson v. McMillian, 503 U.S. 1, 8 (1992). In order to establish that the objective component of an Eighth Amendment violation is satisfied, a prisoner need not prove he has sustained significant injury. However, the extent of injury suffered is one factor that may suggest “whether the use of force could plausibly have been thought necessary” in a particular situation, “or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” [64] The subjective component involves, in the context of force used by prison officials, “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.” [65]

ENFORCEMENT OF CAT UNDER U.S. LAW

18 U.S.C. §§ 2340 – 2340B


As stated above, the United States’ attempt to comply with its obligation under CAT to criminalize torture is codified in 18 U.S.C. § 2340A. Section 2340A criminalizes conduct by a U.S. national or a foreign national present in the U.S. who, acting under color of law, commits or attempts to commit torture outside the United States. The statute is exclusively criminal and may not be construed as creating any right enforceable in a civil proceeding. See 18 U.S.C. § 2340B. Section 2340A generally applies to acts committed by U.S. nationals overseas (everywhere except “all areas under the jurisdiction of the United States, including any of the places described in sections 5 and 7 of this title and Section 46501(2) of Title 49.”) When the Section was enacted the reach of the cross-referenced provisions, notably 18 U.S.C. § 7, was uncertain. [66] However, Section 7 was broadened in the USA PATRIOT Act to clarify jurisdiction over crimes committed against U.S. citizens on U.S. property abroad by extending U.S. criminal jurisdiction over certain crimes committed at its foreign diplomatic, military and other facilities, and by cross-reference excluded those places from the reach of Section 2340A. The resulting drastic limitation of jurisdiction under 18 U.S.C. § 2340A appears unintended. We recommend that Congress amend Section 2340A to assure that it applies to U.S. government premises abroad without prejudice to the expansion of U.S. criminal jurisdiction under other statutes.

The U.S. did not enact a specific criminal statute outlawing torture within the United States, out of deference to federal-state relations and because it determined that existing federal and state criminal law was sufficient to cover any domestic act that would qualify as torture under CAT. [67] It is submitted that the inapplicability of state law to U.S. facilities abroad and the lack of other federal criminal law comparable to Section 2340A leaves a serious vacuum in carrying out the obligations of the U.S. under CAT.

Unfortunately the U.S. has never enforced 18 U.S.C. § 2340A, and has thereby fallen far short of its obligations under international law and its professed ideals. The United States has failed to utilize 18 U.S.C. § 2340A to prosecute either U.S. agents suspected of committing torture outside the jurisdiction of the U.S. or foreign torturers living within the United States. Indeed, Amnesty International reported in 2002 that in the eight years following the enactment of 18 U.S.C. § 2340 and § 2340A, not a single case had been brought under that section. [68]

Uniform Code of Military Justice

The UCMJ may be used to prosecute in courts-martial certain acts of ill-treatment carried out, whether within the United States or overseas, by American military personnel and possibly certain civilians accompanying such personnel. This federal statute is essentially a complete set of criminal laws that includes both crimes that are normally part of a criminal code as well as uniquely military and wartime offenses.

As a jurisdictional matter, the UCMJ applies worldwide (10 U.S.C. § 805), and persons subject to the UCMJ include any U.S. service member (10 U.S.C. § 802) as well as certain civilians “[i]n time of war … serving with or accompanying an armed force in the field” (10 U.S.C. § 802(a)(10)) and POWs (10 U.S.C. § 802(a)(9)). [69] Because courts-martial have jurisdiction to try “any person who by the law of war is subject to trial by a military tribunal” for any offense against the laws of war (10 U.S.C. § 818), the UCMJ would seem to apply also to “unlawful combatants” deemed by the Administration not to qualify for POW status under Geneva III.

The broad statutory application of the UCMJ to civilians associated in various ways with the armed forces has been judicially limited in deference to the requirements of Article III, Section II, of the Constitution and the Fifth and Sixth Amendments protecting the right to trial by jury. As so limited, the UCMJ does not apply to civilians who have no military status in peacetime, even if they are accompanying United States forces overseas as employees or dependents. Although courts’ interpretations of the terms “serving”, “accompanying” and “in the field” suggest a broad application, the “time of war” requirement is construed narrowly when applied to civilians. [70] As recently as 1998, the Court of Appeals for the Armed Forces [71] analyzed the propriety of the application of the UCMJ to civilians and stated:

As a matter of constitutional law, the Supreme Court has held that Congress may not extend court-martial jurisdiction to cover civilians who have no military status in peacetime, even if they are accompanying United States forces overseas as employees or dependents.


Willenbring v. Neurauter, 48 M.J. 152, 157, 1998 CAAF LEXIS 43 (C.A.A.F. 1998). The line of cases in this area generally focuses on the application of the UCMJ to civilian contractors and civilian dependents of service members. See, e.g., Robb v. United States, 456 F.2d 768 (Ct. Cl. 1972) (civilian engineer employed by U.S. Navy in Vietnam was not subject to UCMJ); Reid v. Covert, 354 U.S. 1 (1957) (no jurisdiction over civilian dependents of service members stationed overseas in peacetime for capital offenses). No cases directly address whether CIA operatives conducting para-military operations with the regular armed forces or interrogations within a military base are considered civilians for purposes of UCMJ application. In Reid v. Covert, the Supreme Court stated, “[e]ven if it were possible, we need not attempt here to precisely define the boundary between ‘civilians’ and members of the ‘land and naval Forces.’ We recognize that there might be circumstances where a person could be ‘in’ the armed services . . . even though he had not formally been inducted into the military or did not wear a uniform.” See 354 U.S. at 22. [72] In any event, where a CIA operative is a detached service member who has not been formally discharged from military service (as is often the case in practice), the UCMJ would generally apply to such person in time of war or peace.

The UCMJ provides the strongest substantive basis for potential prosecution of torture or CID treatment in federal criminal law, specifically outlawing cruel or unusual punishment, torture under 18 U.S.C. § 2340 and a variety of related offenses. Article 55 of the UCMJ provides that:

Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by any court-martial or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited.


10 U.S.C. § 855. [73] Article 55 is unique in its specific definition of “cruel or unusual punishment” as a standard of treatment. [74] While most military courts have followed the Supreme Court's analytical framework of protections under the Eighth Amendment as they pertain to cruel and unusual punishment, [75] several military courts have found that Article 55 provides greater protections than those given under the Eighth Amendment. [76] It is notable that Article 55 applies at least the equivalent of the protection afforded by the Eighth Amendment even if the victim is not otherwise entitled to constitutional rights (e.g., a non-citizen apprehended and detained outside the U.S. and arguably not entitled to such rights). [77]

Moreover, the UCMJ effectively provides a basis for the prosecution of military personnel in courts-martial for the offense of torture in violation of 18 U.S.C. § 2340. Article 134 of the UCMJ (10 U.S.C. § 934) provides:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.


Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the UCMJ: Clause 1 offenses involving disorders and neglect to the prejudice of good order and discipline; Clause 2 offenses involving conduct of a nature to bring discredit upon the armed forces; and Clause 3 offenses entailing non-capital crimes or offenses that violate Federal law.

In order to successfully charge an individual under Clauses 1 and 2 of this Article, the government must show: (i) that the accused did or failed to do certain acts; and (ii) that, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. [78] Under Clause 1, the acts must be directly prejudicial to good order and discipline, rather than remotely so. Under Clause 2, discredit is interpreted to mean “injure the reputation of,” and encompasses conduct that brings the service “into disrepute or which tends to lower it in public esteem.” [79] With respect to Clause 3 offenses, as a general rule, any offense created by Federal statute may be prosecuted as an Article 134 offense. United States v. Perkins, 47 C.M.R. 259 (Ct. of Mil. Rev. 1973). [80]

Thus, a service member whose conduct is alleged to violate 18 U.S.C. § 2340, the federal enactment of CAT, could be prosecuted under Article 134 of the UCMJ, as a Clause 3 violation. Moreover, multiple counts alleging Article 134 violations also could be brought in such a situation, as such conduct could be construed as prejudicial to good order and discipline and/or of a nature to bring discredit upon the armed forces. Perkins, 47 C.M.R. at 263-264.

Finally, criminal charges for torture or CID conduct could be brought under a variety of other provisions [81]including “cruelty.” [82] The last of these offenses is generally intended to be applied to mistreatment of U.S. service members by their superiors, but by its terms it is not so limited and has been applied to intentional mistreatment of detainees. [83] And in instances where specific orders are in place regarding the treatment of detainees, as is recommended in this Report, failure to obey such orders is punishable under 10 U.S.C. § 892. A number of service members in Iraq are or have been investigated or tried for assaulting detainees, under the assault provision of the UCMJ (Article 128), and in at least one case the alleged assault occurred in the context of an interrogation. [84]

The UCMJ is thus the substantively most extensive body of federal criminal law relating to the interrogation of detainees by U.S. military personnel and, in time of war, its reach could possibly extend to civilians such as CIA agents accompanying such personnel. It prohibits such persons from subjecting detainees to torture and “cruel or unusual punishment” within or without the United States and regardless of the applicability of constitutional rights.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 2 OF 4 (The Association of the Bar of the City of New York Committee on International Human Rights Committee on Military Affairs and Justice's Report CONT'D.)

SUMMARY

CAT’s prohibition against torture is absolute. By ratifying CAT, the United States has accepted that the prohibition of torture is non-derogable. Moreover, by implementing prohibitions against torture in immigration, extradition, criminal and civil tort law contexts, the U.S. has given CAT’s prohibition against torture the force of U.S. law. Furthermore, by stipulating that CAT’s prohibition on CID treatment or punishment means the cruel and unusual treatment or punishment prohibited by the U.S. Constitution, the U.S. has made relevant the case law providing that detainees cannot be subjected to interrogation techniques that force them to answer law enforcement questions by “fear of hurt, torture or exhaustion,” Adamson v. California, supra; that are “brutal and offensive to human dignity,” Rochin v. California, supra; that fall below the “evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, supra; or which deliberately inflict force or pain (in the context of restoring prison order or safety), Hudson v. McMillian, supra. However, U.S. enforcement of CAT in our domestic criminal law – particularly with respect to acts of torture or CID treatment by U.S. civilians or by U.S. officials in extra-territorial areas under U.S. jurisdiction – has been incomplete. We urge the U.S. to fill in the gaps in preventing and punishing torture and CID treatment left by 18 U.S.C. § 2340A and to fully utilize the UCMJ to fulfill its obligations under CAT.

THE GENEVA CONVENTIONS

The four Geneva Conventions of 1949 are the core of the international law of armed conflict applicable to the treatment of detainees, albeit not the complete body of applicable law. The applicability of the Geneva Conventions to persons captured by the United States in connection with the War In Afghanistan and the ongoing conflict in Afghanistan, however, is highly controversial. The most hotly contested issue is whether those Al Qaeda and Taliban detainees who were captured before the creation of the Karzai government are entitled to POW status under Geneva Convention III Relative to the Treatment of Prisoners of War (“Geneva III”). This issue is of particular significance because Geneva III flatly prohibits “any form of coercion” of POWs in interrogation – the most protective standard of treatment found in international law. Likewise, Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (“Geneva IV”) protects “civilian” detainees who qualify as “protected persons” from “coercion.” [85] We also should note that the issues regarding Geneva III and Geneva IV are affected by whether the person was detained either before or after the Karzai government was established. Before the Karzai government, the U.S. was engaged in an international armed conflict with Afghanistan, which was governed by the Taliban (albeit the U.S. did not recognize that government). After the establishment of the Karzai government, the conflict in Afghanistan became an internal one – as the U.S. and other international organizations were present in Afghanistan with the consent of the Karzai government to assist in maintaining order. Geneva III and Geneva IV apply only in situations of international armed conflict and, therefore, ceased to apply once the Afghan conflict became an internal one. See Geneva IV, Art. 6.

In this section, we will examine the Administration’s position that Al Qaeda and Taliban detainees are not POWs under Geneva III and some critiques of the Administration’s position. We submit that, regardless of whether a detainee enjoys status as a POW or civilian protected person under the Geneva Conventions, the Conventions nevertheless are relevant to the interrogation of detainees in the following respects:

First, the requirements of humane treatment embodied in Common Article 3 of the Geneva Conventions and Article 75 of Additional Protocol I protect all detainees captured in situations of international or internal armed conflict, regardless of “legal” status. [86] Of course, all detainees – including those captured outside of Afghan territory or in connection with the “War on Terror” – are entitled to the protection provided by human rights law, including CAT, the ICCPR and customary international law.

Second, notwithstanding its position on the POW status of Taliban and Al Qaeda detainees, the Administration has undertaken that it will treat all detainees in a manner consistent with the principles of Geneva III. Accordingly, the interrogation techniques reportedly being used on detainees at Bagram and other U.S. detention facilities should be considered in light of the text and spirit of the Geneva Conventions.

Third, if there is doubt as to whether a detainee meets Geneva III criteria for POW status, that detainee is entitled to interim POW status until a “competent tribunal” determines his or her legal status. Because the U.S. government has not convened “competent tribunals” to determine the status of any detainees, all detainees for whom POW status is in doubt are entitled to interim POW status. [87]

Finally, even accepting the interpretation that the Third and Fourth Geneva Conventions contain gaps leaving certain detainees captured in the War in Afghanistan (i.e., citizens of co-belligerents and neutrals) without POW or “protected person” civilian status, the Geneva Conventions are supplemented by human rights law and customary international legal norms which have the force of law in the United States. For example, even where a detainee may not be entitled to a hearing under Geneva III, he is entitled to a hearing to determine the justification for his detention under Article 9 of the ICCPR. Many detainees may not be combatants at all and may be simply innocent bystanders mistakenly detained or wrongfully turned over to the U.S. military by the Northern Alliance. [88] They deserve prompt hearings in which they are given an opportunity to establish their non-combatant status.

APPLICATION OF THE GENEVA CONVENTIONS TO THE AFGHAN CONFLICT GENERALLY

Both the U.S. and Afghanistan are parties to the Geneva Conventions. Article 2 common to all four Conventions provides that the Conventions “apply to all cases of declared war or of any other armed conflict” between two or more parties to the Conventions so long as a state of war is recognized by a party to the conflict. The Conventions also apply to all cases of partial or total occupation of the territory of a signatory, even if the occupation meets with no armed resistance. See Geneva Conventions, Art. 2. Signatories to the Conventions are bound by its terms regardless of whether an additional party to the conflict is a signatory. Id. The Administration’s position is that the Geneva Conventions apply to the War in Afghanistan. [89]

GENEVA III

Relevant Legal Standards


Under Geneva III, combatants are entitled to POW status if they are members of the armed forces (other than medical personnel and chaplains). The specific requirements for combatant/POW status are set forth in Article 4 of Geneva III [90] and Articles 43 and 44 of Additional Protocol I. [91]

If there is any doubt as to whether captured persons meet Article 4’s criteria for POW status, such persons are entitled to interim POW status until a “competent tribunal” determines their legal status. [92]

Geneva III mandates that POWs be treated humanely at all times. This includes freedom from physical and mental torture, acts of violence, intimidation and insult, and exposure to public humiliation. [93] Pursuant to Article 14, POWs also “are entitled in all circumstances to respect for their persons and their honour . . . . [and] shall retain the full civil capacity which they enjoyed at the time of their capture.”

With respect to interrogation, in particular, Article 17 of Geneva III provides: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.” Under Article 17, POWs are only obligated to provide their name, rank, date of birth, and army, personal or serial identification number or equivalent information. Geneva III does not, however, prohibit non-coercive interrogation of POWs. POWs may be interrogated, but they are not obliged to respond to such interrogation, nor may they be threatened, coerced into responding or punished for failing to respond. The Geneva Conventions also do not “preclude classic plea bargaining” – i.e., the offer of leniency or other incentives in return for cooperation. [94]

Thus, to the extent detainees from the War in Afghanistan are considered POWs or to the extent their POW status is in “doubt” pending the determination of status by a competent tribunal, interrogation tactics which rise to the level of “coercion” are prohibited by Geneva III.

The United States’ Position

In sharp contrast with past conflicts (such as Vietnam and Korea) in which it was U.S. policy to presume that military prisoners were entitled to POW status regardless of the possible nonqualification of their forces under Geneva III, from the very outset of the War in Afghanistan, United States officials labeled captured Al Qaeda and Taliban prisoners “unlawful combatants,” and stated that the Geneva Conventions were, therefore, entirely inapplicable to their treatment. [95] The United States reasoned that Al Qaeda was not entitled to the protections of the Geneva Conventions because: (1) Geneva III could not apply to members of a nonstate organization, such as Al Qaeda, (2) the conflict was not an internal conflict such that Al Qaeda members could benefit from the protection of Common Article 3, and (3) in any event, Al Qaeda members failed to meet the requirements set forth in Article 4(A)(2) of Geneva III. [96] The United States argued further that, since Afghanistan was not a functioning state during the conflict and the Taliban was not recognized as a legitimate government, Geneva III could not apply to the Taliban. [97]

After vigorous criticism was leveled against these arguments, Secretary of State Colin Powell requested that the Administration reconsider its position. [98] On February 7, 2002, in response to Powell’s comments, the Administration partially reversed its initial position. Although the Administration continues to argue that the Geneva Conventions are inapplicable to Al Qaeda captives, President Bush announced that Geneva III was applicable to the Taliban because both the U.S. and Afghanistan were signatories to the Convention and the parties had been involved in an armed conflict. However, President Bush further argued that because the Taliban had violated the laws of war and associated closely with Al Qaeda, “[u]nder the terms of the Geneva Convention … the Taliban detainees do not qualify as POWs.” [99] The decision in United States v. Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002), which specifically addresses the issue of whether the Taliban are entitled to POW status under Geneva III, sheds further light on the U.S. position. [100]

Critiques of the United States’ Position

International humanitarian and human rights organizations and legal bodies, including the International Committee of the Red Cross (“ICRC”), [101] the Inter-American Court of Human Rights, [102] Amnesty International, [103] the International Commission of Jurists, [104] the Secretary General of the United Nations, [105] the United Nations High Commissioner for Human Rights, [106] as well as certain U.S. and foreign international law scholars [107] have criticized the U.S. position on several grounds.

Article 5 Presumes POW Status Until the Determination of Status by a Competent Tribunal

Critics of the Administration position argue that non-civilian detainees from the War in Afghanistan either clearly qualify as POWs or their POW status is in “doubt.” Geneva III mandates that a detainee whose status is in “doubt” must be treated as a POW until his status is decided otherwise by a competent tribunal under Article 5. Indeed, Article 5’s presumption that captured combatants are entitled to POW status until their status is determined by a competent tribunal is one that has been consistently honored by the U.S. since World War II. [108] Moreover, like Article 5, customary international law also includes the principle that a competent tribunal must resolve any doubt about the status of a captured combatant. [109] We agree with critics of the Administration position that all combatants whose claim to POW status is “in doubt” must be treated as POWs until such doubt has been resolved by a “competent tribunal.” Accordingly, since no tribunals have been convened for detainees from the War in Afghanistan, all such detainees must be considered POWs under Geneva III.

The Taliban Detainees Were “Regular Armed Forces” and, Therefore, Are Encompassed by Article 4(A) of Geneva III

Critics of the Administration’s position that Taliban fighters are not entitled to POW status because they do not satisfy the requirements of Article 4(a)(2) of Geneva III [110] assert that Taliban captured in the War in Afghanistan are entitled to POW status either under: Article 4(a)(1) because they are “[m]embers of the armed forces” of Afghanistan; or Article 4(a)(3) as they are “[m]embers of regular armed forces who profess allegiance to a government of an authority not recognized by the Detaining Power.” [111]

Policy Arguments Favoring Broad Grant of POW Status to Non-Civilian Detainees from the War in Afghanistan

Several policy arguments favor granting POW status liberally even assuming that Geneva III does not apply to Taliban or Al Qaeda detainees captured in the War in Afghanistan.

First, depriving Taliban and Al Qaeda of POW status because they do not obey the laws of war sets a dangerous precedent, inviting other state parties to claim that another party is not obeying the rules of war and that they are, therefore, free from the obligations of Geneva III. International humanitarian law applies regardless of whether or not the other party to the conflict respects such laws. [112] Reciprocity arrangements are generally rejected in international humanitarian law as they can so easily be abused at the expense of civilians or persons rendered “hors de combat.” [113]

Second, it is in the U.S.’s self-interest to ensure that the Geneva Conventions – a regime of vital importance to the safety of our own armed forces – are interpreted as broadly as possible. Otherwise, an opposing state party could use the argument that the U.S. has violated the laws of war to deny captured U.S. soldiers POW status. In fact, North Korea and Vietnam have already used this argument as a basis to deny captured U.S. prisoners POW protections under the Geneva Conventions. [114] Indeed, it was reportedly these very examples that prompted Colin Powell, out of concern for the safety of U.S. forces, to request that President Bush reconsider the Administration’s initial position. [115]

We accordingly urge liberal extension of POW treatment where that would encourage reciprocal treatment of U.S. service personnel and advance more generally foreign policy and national security interests. We further believe that, even to the extent that POW status is denied to detainees, such detainees must be afforded the protections of international criminal law, as well as international human rights and humanitarian law.

GENEVA IV

Geneva IV applies in international armed conflicts to the same extent as Geneva III. It covers “protected persons” defined as “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” See Geneva IV, Article 4. [116]

The fact that a person may have unlawfully participated in a conflict is not relevant to Geneva IV protections, apart from a significant national security exemption. The term “protected persons” includes persons detained as spies or saboteurs as well as other persons suspected of engaging in activities hostile to the security of the detaining power. Specifically, Article 5 provides:

Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State ….

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.


As drafted, (i.e., the use of the words “the latter”), it would appear that the national security derogation is available only to the State on whose territory the conflict is occurring (i.e., in the War in Afghanistan, only to the Northern Alliance), and there is no authority whether or not an allied State, such as the United States, can benefit from such exemption.

In an exception of great importance in Afghanistan, given the number of third country participants in the conflict, “protected persons” does not include “[n]ationals of a State which is not bound by the Convention,” “[n]ationals of a neutral State who find themselves in the territory of a belligerent State” and “nationals of a co-belligerent State … while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.” See Geneva IV, Article 4. For example, a Pakistani picked up on the battlefield in Afghanistan would fall within the exceptions to “protected person” status under Geneva IV.

However, in no event would such provision permit the State to commit “grave breaches” as defined in Article 147, which includes torture or inhuman treatment and willfully causing great suffering or serious injury to body or health, upon a “protected person”. See Geneva IV, Art. 146. Furthermore, to the extent that any physical or moral coercion (otherwise prohibited by Article 31 of Geneva IV) might fall below the level of “grave breach” and thus be derogable, the ICRC commentary to the national security derogations contained in Article 5 of Geneva IV, involving persons engaged in activities hostile to the security of the state notes that:

widespread application of the Article may eventually lead to the existence of a category of civilian internees who do not receive the normal treatment laid down by the Convention but are detained under conditions which are almost impossible to check. It must be emphasized most strongly, therefore, that Article 5 can only be applied in individual cases of an exceptional nature, when the existence of specific charges makes it almost certain that penal proceedings will follow. This article should never be applied as a result of mere suspicion.


Like POWs under Geneva III, “protected persons” under Geneva IV cannot be subjected to coercive interrogation tactics. Specifically, Article 31 of Geneva IV provides that “[n]o physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.” Article 32 further provides that “any measure of such a character as to the cause the physical suffering or extermination of protected persons” is prohibited and that “[t]his prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality, whether applied by civilian or military agents.”

By its terms, Geneva IV ceases to apply “on the general close of military operations” in the case of an international conflict. See Geneva IV, Art. 6. Whether military operations have reached a “general close” after the establishment of the Karzai government in June 2002 and whether the change in character of the conflict from an international one to a multi-national conflict within a single State against non-State opponents terminated application of Geneva IV are issues open to controversy. [117] Thus, the ability of some civilians captured in Afghanistan to claim “protected person” status under Geneva IV today is subject to additional debate. However, regardless of the characterization of the current conflict, torture and inhumane treatment of civilian detainees from the War in Afghanistan or the ongoing conflict in Afghanistan, whether or not they qualify as “protected persons” under Geneva IV, is not permitted. All such persons are still entitled to the protections of international human rights law and to humane treatment under Common Article 3 and Article 75 of Additional Protocol I.

SUMMARY

None of the detainees from the War in Afghanistan or the ongoing conflict in Afghanistan fall outside of international humanitarian law. An individual detained during the armed conflict in Afghanistan – whether considered an international or internal armed conflict –is either protected by Geneva III as a POW, by Geneva IV as a civilian “protected person,” or, at the very minimum, by Common Article 3 and Article 75 of Additional Protocol I. Of course, all detainees – regardless of where or when they were captured – are entitled to the protection of human rights law (including CAT and the ICCPR) and customary international law.

Detainees protected as POWs or civilians under Geneva III or Geneva IV cannot be subjected to coercion of any kind. In addition, those detainees whose POW status is in doubt are entitled to interim POW status until a competent tribunal determines otherwise. At least some Afghan detainees are entitled to such tribunals, and the U.S. is long overdue in providing any process whatsoever to detainees, many of whom may simply be innocent non-combatants, wrongfully detained. We, therefore, urge the U.S. to establish proper screening procedures for all detainees.

OTHER INTERNATIONAL LEGAL STANDARDS

The legal standards set forth in the International Covenant on Civil and Political Rights, the American Declaration of the Rights and Duties of Man, and customary international law also apply to the treatment of detainees held by the United States.

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS [118]

Relevant Legal Standards


Like CAT, the ICCPR expressly prohibits both torture and CID. Specifically, Article 7 of the ICCPR provides: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” [119] However, the ICCPR goes further than CAT in its non-derogability provision, expressly stating that neither torture nor CID treatment can be justified by exceptional circumstances such as war, internal political stability or other public emergencies. (See ICCPR, Art. 4). Article 10 also provides that: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

The Human Rights Committee, established under Article 28, adjudicates complaints filed by individuals or states parties alleging violations of the ICCPR. The Committee has found the following conduct to violate Article 7’s prohibition against cruel, inhuman or degrading treatment or punishment: threatening a victim with torture, prolonged solitary confinement and incommunicado detention, and repeated beatings. [120] Moreover, the Human Rights Committee has specifically criticized interrogation procedures such as handcuffing, hooding, shaking and sleep deprivation as violations of Article 7 in any circumstances. [121]

Although the ICCPR does not expressly prohibit states parties from “rendering” individuals to countries where they are likely to be mistreated, the Human Rights Committee has explained that, under Article 7, states parties “must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.” [122] Accordingly, the Human Rights Committee has stated that “[i]f a State party extradites a person within its jurisdiction in circumstances such that as a result there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant.” [123]

Enforcement

U.S. Courts


In ratifying the ICCPR, the U.S. Senate declared that Articles 1 through 27 are not self-executing. Thus, while the Supreme Court has not squarely decided the issue, the majority of federal appeals courts have held that the ICCPR provides no privately enforceable rights and is not binding on federal courts. [124] The Second and Ninth circuit courts, however, have cited the ICCPR as evidence that customary international law prohibits arbitrary arrest, prolonged detention and torture. [125]

The Human Rights Committee

The Human Rights Committee is empowered to: (i) receive state party reports and comment on those reports (see ICCPR, Art. 40(4)); (ii) rule on complaints filed by a state party that another state party is not fulfilling its obligations under the ICCPR (see ICCPR, Art. 41); [126] and (iii) rule on complaints filed by individuals “who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies.” [127]

ORGANIZATION OF AMERICAN STATES' INSTRUMENTS

Relevant Legal Standards


The U.S. is a member of the Organization of American States (the “OAS”). Article XXV of The American Declaration of the Rights and Duties of Man (the “American Declaration”), which was adopted by the Ninth International Conference of the OAS in 1948, provides:

Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.


On June 1, 1997, the U.S. signed, but has not yet ratified, the American Convention On Human Rights (1969) (the “American Convention”). [128] Article 5 of the American Convention, which sets forth Rights to Humane Treatment, provides:

1. Every person has the right to have his physical, mental, and moral integrity respected.

2. No one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.


Moreover, pursuant to Article 27(2) of the American Convention, the Rights to Humane Treatment may not be suspended “[i]n time of war, public danger, or other emergency that threatens the independence or security of a State Party.”

With respect to the treatment of detainees, the Inter-American Commission on Human Rights (the “Inter-American Commission”) – which represents all member countries of the OAS and was established under Chapter VII of the American Convention – has determined that, “when the State holds a person in detention and under its exclusive control, it becomes the guarantor of that person’s safety and rights.” [129] In this regard, the Commission has found the following practices to be violations of Article 5 of the American Convention: threats to summon family members and pressure them to “talk”; threats to kill detainees; blindfolding detainees and forcing them to run around; “prolonged isolation and deprivation of communication”; solitary confinement; confining detainees in small cells with other prisoners; keeping detainees in cells that are damp and/or without adequate ventilation; keeping detainees in cells without beds; forcing detainees to sleep on the floor or on newspaper; depriving detainees of necessary hygiene facilities; beatings with rifles; and kicks in various parts of the body, especially in the stomach. [130]

The Inter-American Court of Human Rights (the “Inter-American Court”) – established pursuant to Chapter VIII of the American Convention – has held that, “in order to establish if torture has been inflicted and its scope, all the circumstances of the case should be taken into consideration, such as the nature and context of the respective aggressions, how they were inflicted, during what period of time, the physical and mental effects and, in some case, the sex, age and state of health of the victims.” [131] “The violation of the right to physical and psychological integrity of persons is a category of violation that has several gradations and embraces treatment ranging from torture to other types of humiliation or cruel, inhuman or degrading treatment with varying degrees of physical and psychological effects caused by endogenous and exogenous factors which must be proven in each specific situation.” [132]

The Inter-American Court has found the following practices to violate Article 5 of the American Convention and/or Article 2 of the Inter-American Convention To Prevent and Punish Torture: [133] forcing detainees to stand blindfolded with their hands cuffed behind their backs; forcing detainees to listen to the cries of others being beaten; threatening detainees with physical torture; restriction of visiting rights; incommunicado detention; incarceration in solitary confinement and/or in a small cell with no ventilation or natural light; prohibiting detainees from engaging in physical exercise or intellectual efforts; deprivation of necessary hygiene facilities; deficient medical treatment; and throwing detainees to the ground. [134] “[A]ccording to international standards for protection, torture can be inflicted not only via physical violence, but also through acts that produce severe physical, psychological or moral suffering in the victim.” [135] The Inter-American Court also has held that: “Prolonged isolation and being held incommunicado constitute, in themselves, forms of cruel and inhuman treatment, harmful to the mental and moral integrity of the person and to the right of all detainees of respect for the inherent dignity of the human being.” [136]

Moreover, the Inter-American Court has warned that the fact that a State is confronted with terrorism does not, in itself, warrant the use of force:

Any use of force that is not strictly necessary, given the behavior of the person detained, constitutes an affront to human dignity . . . in violation of Article 5 of the American Convention. The need to conduct investigations and the undeniable difficulties inherent to combating terrorism are not grounds for placing restrictions on the protection of the physical integrity of the person. [137]


In a case brought before the Inter-American Commission by detainees alleging violations of the United States’ obligations under the American Declaration by U.S. armed forces in Grenada in 1983, Coard, et al. v. United States, the Inter-American Commission expressly extended the protections of human rights and humanitarian norms to extraterritorial conduct by U.S. military forces and criticized the U.S. for delay in providing procedure to detainees. [138] Acknowledging the need to balance between public security and individual rights, the Inter-American Commission in Coard held that: “What is required when an armed force detains civilians is the establishment of a procedure to ensure that the legality of the detention can be reviewed without delay and is subject to supervisory control. . . . [C]ontrol over a detention [cannot] rest[] exclusively with the agents charged with carrying it out.” Coard, at paras. 58-59.

Enforcement

The Inter-American Commission has competence with respect to matters relating to the fulfillment of the commitments made by the States Parties to the American Convention. [139] “The main function of the Commission” is “to promote respect for and defense of human rights.” [140] Any person may lodge a petition with the Commission complaining of violation of the American Convention by a State Party, so long as effective domestic remedies available to the petitioner have been exhausted. [141]

On March 12, 2002, in response to a petition challenging detentions at Guantánamo Bay coordinated by the Center for Constitutional Rights, [142] the Inter-American Commission adopted precautionary measures addressed to the United States concerning the Guantánamo detainees. [143] Specifically, the Commission asked the U.S. “to take the urgent measures necessary to have the legal status of the detainees at Guantánamo Bay determined by a competent tribunal.” [144] In so doing, the Inter-American Commission explained:

[W]here persons find themselves within the authority and control of a state and where a circumstance of armed conflict may be involved, their fundamental rights may be determined in part by reference to international humanitarian law as well as international human rights law. Where it may be considered that the protections of international humanitarian law do not apply, however, such persons remain the beneficiaries at least of the non-derogable protections under international human rights law. In short, no person under the authority and control of a state, regardless of his or her circumstances, is devoid of legal protection for his or her fundamental and non-derogable human rights. [145]


With regard to the Guantánamo Bay detainees in particular, the Inter-American Commission observed that: “[T]he information available suggests that the detainees remain entirely at the unfettered discretion of the United States government. Absent clarification of the legal status of the detainees, the Commission considers that the rights and protections to which they may be entitled under international or domestic law cannot be said to be the subject of effective legal protection by the State.” [146] The Inter-American Commission further noted that, regardless of the legal status of the Guantánamo Bay detainees, their legal protections “may in no case fall below the minimal standards of non-derogable rights.” [147] Thereafter, the Commission issued a renewed request to the U.S. government for precautionary measures, stating that new factual allegations regarding torture or other ill-treatment of detainees “raise questions concerning the extent to which the United States’ policies and practices in detaining and interrogating persons in connection with its anti-terrorist initiatives clearly and absolutely prohibit treatment that may amount to torture or may otherwise be cruel, inhuman or degrading as defined under international norms.” [148]

CUSTOMARY INTERNATIONAL LAW AND JUS COGENS

Relevant Legal Standards


Customary international law has long prohibited the state practice of torture, without reservation, in peace or in wartime. [149] On December 9, 1975, the United Nations General Assembly adopted by consensus the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Punishment. [150] The Torture Resolution together with CAT and the ICCPR – ratified by 133 and 151 States, respectively – embody the customary international law obligation to refrain from behavior which constitutes torture. [151] In addition, in 1985 the United Nations Special Rapporteur on Torture, Pieter Koojimans, noted the widespread existing domestic legislation in many countries, including the United States, expressly or by implication prohibiting torture as well as cruel, inhuman and degrading punishment. [152]

The prohibition of torture is, moreover, one of the few norms which has attained peremptory norm or jus cogens status, and is recognized as such by United States courts. [153] Jus cogens is defined as a peremptory norm “accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” [154] While many international agreements expressly prohibit both torture and cruel, inhuman and degrading treatment, [155] it remains an open question as to whether jus cogens status extends to the prohibition against cruel, inhuman or degrading treatment. What is clear, however, is that cruel, inhuman and degrading treatment or punishment is prohibited by customary international law.

U.S. ratification of the ICCPR and CAT are clear pronouncements that we condemn the practice of torture and CID treatment and that we consider ourselves legally bound to prohibit such conduct. Indeed, in 1999, the United States issued a report to the U.N. Committee Against Torture categorically affirming that:

Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as justification for torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstance (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. [156]


Furthermore, the United States has enacted the Torture Victim Protection Act, [157] has imposed civil liability for acts of torture regardless of where such acts take place, [158] and has enacted the Torture Victims Relief Act, providing for monetary assistance for torture victims. [159] As previously discussed, not only does the U.S. Constitution prohibit cruel and unusual punishment or treatment by state officials (including under the military justice system), but almost all of the U.S. State constitutions have similar prohibitions. [160] Finally, a number of federal judicial proceedings have recognized that the right to be free from torture as well as cruel, inhuman or degrading treatment or punishment is a norm of customary international law. [161]

In the State Department Country Reports On Human Rights Practices, for example, the United States has expressly characterized the following types of conduct – some of which are allegedly occurring at U.S. detention centers – as “torture” or “other abuse”: tying detainees in painful positions; forcing detainees to stand for long periods of time; incommunicado detention; depriving detainees of sleep; dousing naked detainees with cold water; denial of access to medical attention; interrogation techniques designed to intimidate or disorient; subjecting a detainee to loud music; forcing a detainee to squat or to assume “stressful, uncomfortable or painful” positions for “prolonged periods of time”; long periods of imprisonment in darkened rooms; verbal threats; and instilling detainees with the false belief that they are to be killed. [162] The following types of conduct have been defined as cruel, inhuman or degrading treatment: stripping; confinement in severely overcrowded cells; beating; imprisonment in small containers; and threats against family members of detainees. [163]

Enforcement

As the Second Circuit stated in Filartiga v. Peña-Irala, 630 F.2d 876 (1980), the United States is bound by customary international law. Thus, in cases where jurisdictional hurdles have been met, the bans on torture, arbitrary detention, and at least some aspects of cruel, inhuman and degrading treatment have been enforced by U.S. courts as violations of customary international law. [164]

SHOULD EXCEPTIONS BE MADE FOR THE “WAR ON TERROR”?: THE EXPERIENCE OF OTHER JURISDICTIONS

Notwithstanding the clear legal prohibitions against the use of torture and cruel, inhuman or degrading treatment in U.S. and international law, we considered whether, in a post-September 11 world, the threat posed by terrorists to the United States could ever justify the use of prohibited interrogation practices. We sought to answer the question of whether there are any circumstances in which torture and CID treatment in the interrogation of detainees should be permitted.

For additional guidance in answering these questions, we looked to the experiences of Northern Ireland and Israel, other places where the struggle between fighting terrorism and upholding the rule of law has been waged. Both the European Court of Human Rights and the Israeli Supreme Court have confronted the contradictory demands of national security and human rights against the backdrop of terrorism. The legal debate that infuses these courts’ seminal decisions on the use of torture and CID treatment in the interrogation of terrorist suspects offers guidance to the United States in interpreting CAT. These courts have ruled that there are no exceptions to the prohibition against torture and CID treatment. Their rulings express the conviction that the torture and CID treatment of detainees – even when those detainees are suspected terrorists – cannot be justified.

LEGAL CHALLENGES TO INTERROGATION PRACTICES IN NORTHERN IRELAND AND ISRAEL

The Republic of Ireland v. The United Kingdom


The European Convention for the Protection of Human Rights and Fundamental Freedoms (the “European Convention”) came into force in 1953. [165] Article 3 of the European Convention provides: “No one shall be subject to torture or to inhuman or degrading treatment or punishment.” The judicial body primarily charged with interpreting and enforcing the European Convention is the European Court of Human Rights (the “ECHR”). The ECHR has, in several decisions, applied the European Convention’s prohibition against torture and inhuman or degrading treatment to cases involving interrogation of suspected terrorists who pose a threat to national security.

The most important of these decisions is The Republic of Ireland. [166] The Republic of Ireland case was decided in a legal and political environment conditioned by several years of terrorism in Northern Ireland perpetrated by members of the Irish Republican Army (IRA) and Loyalist groups. By March 1975, over 1,100 people had been killed, over 11,500 injured and £140 million worth of property destroyed. [167] To combat a campaign of violence being carried out by the IRA, in 1971, the Northern Ireland Government introduced regulations providing authorities with extrajudicial powers, including arrest for interrogation purposes and internment. [168]

The Republic of Ireland Decision is a landmark legal discussion of whether specific interrogation practices committed by British security forces against IRA detainees constituted torture or inhuman or degrading treatment. The impetus for the ECHR’s decision was the Republic of Ireland’s application before the European Commission of Human Rights alleging, among other things, that various interrogation practices – including specific practices referred to as the “five techniques” – amounted to torture and inhuman or degrading treatment, in contravention of Article 3 of the European Convention. [169] The “five techniques” – described by the ECHR as methods of “disorientation” or “sensory deprivation” – include a number of practices allegedly being used today by U.S. interrogators:

• Wall-standing: Forcing a detainee to remain spread-eagled against a wall with his fingers placed high above his head against the wall, his legs spread apart and his feet positioned such that he must stand on his toes with the weight of his body resting on his fingers;
• Hooding: Keeping a dark bag over a detainee’s head at all times, except during interrogation;
• Subjection to noise: Holding a detainee in a room where there is a continuous loud and hissing noise;
• Deprivation of sleep; and
• Deprivation of food and drink. [170]

The European Commission of Human Rights unanimously found that the “five techniques” constituted torture, and that other challenged interrogation practices amounted to inhuman and degrading treatment. [171] Although the British Government subsequently discontinued the “five techniques” and did not contest the underlying allegations of the case or the Commission’s findings in connection therewith, the Republic of Ireland nevertheless referred the case to the ECHR. [172] The ECHR took the opportunity to rule upon the legality of the “five techniques,” citing to the European Court’s responsibility “to elucidate, safeguard and develop the rules instituted by the Convention.” [173]

In The Republic of Ireland decision, the ECHR explained that ill-treatment “had to attain a minimum level of severity to fall within Article 3, the assessment of which was necessarily relative, depending on all the circumstances, including the duration of the treatment, its physical or mental effects and, sometimes, the sex, age or state of health of the victim.” [174] The ECHR pointed out that, while the term “torture” attached “a special stigma to deliberate inhuman treatment causing very serious and cruel suffering,” the distinction between torture and inhuman or degrading treatment “derived principally from a difference in the intensity of the suffering inflicted.” [175] The ECHR held that since the “five techniques” “were applied in combination, with premeditation and for hours at a time, causing at least intense physical and mental suffering and acute psychiatric disturbances, they amount to inhuman treatment.” [176] The ECHR further held that since the “five techniques” aroused “in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance, they were also degrading.” [177] The ECHR concluded that the “five techniques” violated Article 3’s prohibition against inhuman or degrading treatment, but that they did not amount to torture. [178]

Israeli Supreme Court Judgment Concerning The Legality Of The General Security Service’s Interrogation Methods

As the Israeli Supreme Court notes at the outset of its Judgment Concerning The Legality Of The General Security Service’s Interrogation Methods, [179] the State of Israel “has been engaged in an unceasing struggle for both its very existence and security, from the day of its founding”:

Terrorist organizations have established as their goal Israel’s annihilation. Terrorist acts and the general disruption of order are their means of choice. In employing such methods, these groups do not distinguish between civilian and military targets. They carry out terrorist attacks in which scores are murdered in public areas, public transportation, city squares and centers, theaters and coffee shops. They do not distinguish between men, women and children. They act of cruelty and without mercy. [180]


In 1987, the Landau Commission of Inquiry into the Methods of Investigation of the GSS Regarding Hostile Terrorist Acts (the “Landau Commission”) was established to investigate the interrogation practices of the main body responsible for fighting terrorism in Israel, the General Security Service (the “GSS”), and to reach legal conclusions concerning them. The resulting Landau Report, [181] concluded: “The effective interrogation of terrorist suspects is impossible without the use of means of pressure, in order to overcome an obdurate will not to disclose information and to overcome the fear of the person under interrogation that harm will befall him from his own organization, if he does not reveal information.” [182] The Landau Report explained that: “The means of pressure should principally take the form of non-violent psychological pressure through a vigorous and extensive interrogation, with the use of stratagems, including acts of deception. However, when these do not attain their purpose, the exertion of a moderate measure of physical pressure cannot be avoided.” [183] The Landau Commission recommended, however, that GSS interrogators should be guided by clear rules “to prevent the use of inordinate physical pressure arbitrarily administered,” and formulated a code of guidelines (set forth in a secret part of the Landau Report) which defined, “on the basis of past experience, and with as much precision as possible, the boundaries of what is permitted to the interrogator and mainly what is prohibited to him.” [184] The Landau Commission asserted that the latitude it afforded GSS interrogators to use “a moderate measure of physical pressure” did not conflict with the standards set forth in international human rights conventions – such as the UDHR, the ICCPR and the European Convention – which prohibited torture and cruel, inhuman or degrading treatment or punishment. [185]

In 1999, in the GSS Interrogation Methods Decision, the Israeli Supreme Court took up the legality of certain interrogation practices employed by the GSS. The Israeli Supreme Court acknowledged that the Landau Commission had approved the use of “a moderate degree of physical pressure,” and that the Landau Commission’s recommendations had been accepted by the Israeli Government. [186] The interrogation methods considered by the Israeli Supreme Court in the GSS Interrogation Methods Decision were:

• Shaking: Forcefully shaking a detainee’s upper torso back and forth, repeatedly, and in a manner which causes the neck and head to dangle and vacillate rapidly.
• The “shabach” position: Forcing a detainee who has his hands tied behind his back to sit on a small and low chair whose seat is tilted forward and towards the ground, where one hand is placed inside the gap between the chair’s seat and back support, the detainee’s head is covered by an opaque sack falling down to his shoulders, and powerfully loud music is played in the room.
• The “frog crouch”: Forcing a detainee to crouch on the tips of his/her toes for five minute intervals.
• Excessive tightening of handcuffs: Using particularly small cuffs, ill-fitted in relation to the suspect’s arm or leg size.
• Sleep deprivation: A detainee is deprived of sleep as a result of being tied in the “shabach” position, being subjected to powerfully loud music or intense non-stop interrogations. [187]

In examining the legality of these GSS interrogation methods, the Israeli Supreme Court acknowledged that, taken individually, some of the components of the “shabach” position have “legitimate” goals: for example, hooding prevents communication between suspects, the playing of powerfully loud music prevents the passing of information between suspects, the tying of the suspect’s hands to a chair protects investigators, and the deprivation of sleep can be necessitated by an interrogation. [188] According to the Israeli Supreme Court, however, there is a necessary balancing process between a government’s duty to ensure that human rights are protected and its duty to fight terrorism. The results of that balance, the Israeli Supreme Court stated, are the rules for a “reasonable interrogation” – defined as an interrogation which is: (1) “necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever”; and (2) “likely to cause discomfort.” [189] “In the end result,” the Court noted, “the legality of an investigation is deduced from the propriety of its purpose and from its methods.” [190]

Turning to the specific interrogation methods before it, the Court concluded that shaking, the “frog crouch,” the “shabach” position, cuffing causing pain, hooding, the consecutive playing of powerfully loud music and the intentional deprivation of sleep for a prolonged period of time are all prohibited interrogation methods. [191] “All these methods do not fall within the sphere of a ‘fair’ interrogation. They are not reasonable. They impinge upon the suspect’s dignity, his bodily integrity and his basic rights in an excessive manner (or beyond what is necessary). They are not to be deemed as included within the general power to conduct interrogations.” [192] The Israeli Supreme Court explained that restrictions applicable to police investigations are equally applicable to GSS investigations, and that there are no grounds to permit GSS interrogators to engage in conduct which would be prohibited in a regular police interrogation. [193]

In so ruling, the Israeli Supreme Court considered the “ticking time bomb” scenario often confronted by GSS interrogators:

A given suspect is arrested by the GSS. He holds information respecting the location of a bomb that was set and will imminently explode. There is no way to defuse the bomb without this information. If the information is obtained, however, the bomb may be defused. If the bomb is not defused, scores will be killed and maimed. Is a GSS investigator authorized to employ physical means in order to elicit information regarding the location of the bomb in such instances? [194]


The Israeli Supreme Court stated that it was prepared to presume that if a GSS investigator – who applied physical interrogation methods for the purpose of saving human life – is criminally indicted, the “necessity” defense recognized under Israeli Penal Law would be open to him in the appropriate circumstances. [195] The Israeli Supreme Court also acknowledged that the legislature could enact laws permitting the interrogation methods that its decision struck down. [196] However, the Israeli Supreme Court refused to imply from the existence of the “necessity” defense, as the State argued for it to do, “an advance legal authorization endowing the investigator with the capacity to use physical interrogation methods.” [197]

THE LEGAL AND MORAL IMPLICATIONS OF THE "TICKING BOMB" SCENARIO

As the Republic of Ireland and GSS Interrogation Methods Decision demonstrate, in the face of a terrorist threat there is an inherent tension between obtaining potentially life-saving intelligence information through abusive interrogation of detainees and upholding human rights:

In crystallizing the interrogation rules, two values or interests clash. On the one hand, lies the desire to uncover the truth, thereby fulfilling the public interest in exposing crime and preventing it. On the other hand, is the wish to protect the dignity and liberty of the individual being interrogated. [198]


International and human rights law is clear: torture and cruel, inhuman or degrading treatment of detainees is prohibited. Those who would, nevertheless, support the use of moderate physical force, sensory deprivation or disorientation techniques in the interrogation of terrorist suspects argue that resort to such methods is, at times, the only way to prevent the death of innocent persons and is, therefore, justified in such cases as the “lesser of two evils.” Proponents of this view would argue that the legitimacy of an act can be measured by whether its utility exceeds its harm. On this point, the Landau Commission took the following position:

To put it bluntly, the alternative is: are we to accept the offense of assault entailed in slapping a suspect’s face, or threatening him, in order to induce him to talk and reveal a cache of explosive materials meant for use in carrying out an act of mass terror against a civilian population, and thereby prevent the greater evil which is about to occur? The answer is self-evident.

Everything depends on weighing the two evils against each other. [199]


In the case of detainees being held by the U.S. in connection with the “War on Terror,” however, the “ticking bomb” scenario is further complicated. Any utilitarian justification for subjecting these detainees to interrogation practices prohibited by CAT must necessarily be premised on the certainty (or, at least, the substantiated suspicion) that these individuals do, in fact, possess vital intelligence information. But, here, there is no such certainty. Instead, hundreds of detainees at Guantánamo Bay, Bagram Air Force Base and other U.S. detention facilities have been detained for months without any type of hearing or legal challenge permitted to their detention.

Our answer to the question of whether torture of detainees should ever be permitted in a post-September 11 world is that there are no such circumstances. We condemn the use of torture in interrogation of detainees, without exception. By its terms, CAT permits no derogation of the prohibition against torture – stating that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification of torture.” [200] As the Israeli Supreme Court has explained, “A democratic, freedom-loving society does not accept that investigators use any means for the purpose of uncovering the truth. ‘The interrogations practices of the police in a given regime are indicative of a regime’s very character.’” [201]

We recognize that some legal scholars and ethicists may well argue that circumstances exist (as in the “ticking bomb” scenario) in which torture and CID treatment in the interrogation of detainees should be permitted. However, we stress that torture of detainees – which is prohibited under international and U.S. law – is never permissible, and should be fully investigated and prosecuted in all cases.

* * *

In summary, the Association makes the following recommendations:

First, we urge the United States to amend 18 U.S.C. § 2340 to encompass the actions of military and intelligence personnel at U.S. facilities overseas, to fully utilize the UCMJ to protect all detainees from abuse and to independently investigate human rights compliance in countries to which we are “rendering” detainees.

Second, U.S. military and intelligence personnel involved in interrogation of terrorist suspects should be educated regarding the prohibition against torture and CID, and should receive training to comply with those rules.

Third, the U.S. should adhere to its commitments under the Geneva Conventions, extend POW treatment to regular force combatants as a matter of policy, and promptly establish proper screening procedures and hearings for all detainees.

Finally, the Association notes that particularly in these times of terrorism and violence, it is important to protect the rule of law and the standards of decency to which our nation and the community of nations are committed. As the Israeli Supreme Court has stated:

This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. [202]
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 3 OF 4 (The Association of the Bar of the City of New York Committee on International Human Rights Committee on Military Affairs and Justice's Report CONT'D.)

____________

Notes:

1. For purposes of this Report, the term “War in Afghanistan” refers to the period of international armed conflict in Afghanistan – from October 2001 to June 2002, when the Taliban was the governing force in Afghanistan, and the phrase “ongoing conflict in Afghanistan” refers to the period after June 18, 2002 when Hamid Karzai was elected as Afghanistan’s transitional head of state, and the U.S. and other international parties were operating in Afghanistan at the invitation of this new Afghanistan government. This distinction becomes important in discussing the protections afforded to detainees by the Geneva Conventions. See Section II of this Report.

2. An assessment of the parameters and legal implications of the “War on Terror,” a term coined by the Administration, is beyond the scope of this Report.

3. Carlotta Gall, U.S. Military Investigating Death of Afghan In Custody, N.Y. TIMES, Mar. 4, 2003, at A14. According to the New York Times, another Afghan man died of a pulmonary embolism or a blood clot in the lung while in U.S. custody at Bagram on December 3, 2002. Both men died within days of arriving at Bagram. Human Rights Watch has criticized the U.S. government for failing, one year after the first two deaths at Bagram – which were classified as homicides, to release the results of its investigation. See Press Releases & Documents, Voice of America, Rights Group Criticizes U.S. Military for Treatment of Afghan Detainees (Dec. 1, 2003) (printed at 2003 WL 66801402).

4. See, e.g., Dana Priest & Barton Gellman, U.S. Decries Abuse but Defends Interrogations; “Stress and Duress” Tactics used on Terrorism Suspects Held in Secret Overseas Facilities, WASH. POST, Dec. 26, 2002, at A01; Eric Lichtblau & Adam Liptak, Questioning to Be Legal, Humane and Aggressive, The White House Says Now, N.Y. TIMES, Mar. 4, 2003, at A13; Jess Bravin & Gary Fields, How do U.S. Interrogators Make A Captured Terrorist Talk, WALL ST. J., Mar 4, 2003, at B1; Tania Branigan, Ex-Prisoners Allege Rights Abuses By U.S. Military, WASH. POST, Aug. 19, 2003, at A02. While standards and conditions of confinement – addressed by many of the international legal instruments examined in this Report – would be included in any exhaustive inquiry into the treatment of detainees at U.S. detention centers, in this Report we are focusing more narrowly on the legality of interrogation methods.

5. Captives have reportedly been “rendered” by the U.S. to Jordan, Egypt, Morocco, Saudi Arabia and Syria, in secret and without resort to legal process. See, e.g., Peter Finn, Al Qaeda Recruiter Reportedly Tortured; Ex-Inmate in Syria Cites Others’ Accounts, WASH. POST, Jan. 31, 2003, at A14; Dana Priest and Barton Gellman, U.S. Decries Abuse but Defends Interrogations; “Stress and Duress” Tactics used on Terrorism Suspects Held in Secret Overseas Facilities, WASH. POST, Dec. 26, 2002, at A01; Rajiv Chandrasekaran & Peter Finn, U.S. Behind Secret Transfer of Terror Suspects, WASH. POST, Mar. 11, 2002, at A01.

6. See, e.g., Letter from Kenneth Roth, Executive Director, Human Rights Watch to President George W. Bush (Dec. 26, 2002) (available at http://www.hrw.org/press/2002/12/us1227.htm); Letter from Human Rights Groups to President George W. Bush (Jan. 31, 2003); Letter from Ernest Duff, The National Consortium of Torture Treatment Programs to President George W. Bush (Feb. 5, 2003); Letter from Sen. Patrick Leahy to Condoleezza Rice (June 2, 2002); Letter from ABCNY Committees on Military Affairs and Justice and International Human Rights to Scott W. Muller, General Counsel, CIA (June 4, 2003); Letter from Sen. Patrick J. Leahy to William J. Haynes, II, General Counsel, DOD (Sept. 9, 2003).

7. See Letter from William J. Haynes II, General Counsel, DOD, to Kenneth Roth, Executive Director, Human Rights Watch (Apr. 2, 2003). The Administration’s use of the terms “enemy combatants” and “unlawful combatants” to detain persons indefinitely without administrative or judicial proceedings is novel.

8. See Letter from Scott W. Muller, General Counsel, CIA to Miles P. Fischer and Scott Horton, chair of the Committee on Military Affairs and Justice and then-chair of the Committee on International Human Rights, respectively (June 23, 2003). A CIA senior official has informally indicated that the agency complies with applicable law in reliance on the advice of its legal staff. However, we have been unable to confirm what legal advice has been given by CIA counsel or what means have been used to assure compliance with that advice.

9. See Letter from William J. Haynes II, General Counsel, DOD, to Sen. Patrick J. Leahy (June 25, 2003). At the November 20-21, 2003, Annual Review of the Field of National Security Law conference of the American Bar Association’s Standing Committee on National Security Law, Muller stated publicly in response to a question by a member of the Committee on Military Affairs and Justice that Haynes’ June 25, 2003 letter to Sen. Leahy articulates the policy position of “the entire U.S. government.” Copies of the correspondence cited in fn. 6-9 are attached to this Report as Appendix A.

10. Id.

11. Id.

12. Id.

13. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Feb. 4, 1985, G.A. Res. 46, U.N. GAOR 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984) (“CAT”).

14. 136 Cong. Rec. S17486-01, 1990 WL 168442.

15. G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316.

16. O.A.S. RES. XXX, OEA/Ser. L.V./II. 82 Doc. Rev. 1, at 17.

17. 213 U.N.T.S. 221.

18. See White House Fact Sheet: Status of Detainees at Guantánamo (Feb. 7, 2002) (available at http://www.whitehouse.gov/news/releases ... 07-13.html).

19. Geneva Convention (III) Relative to the Treatment of Prisoners of War, 6 U.S.T. 3316, 1949 U.S.T. LEXIS 483 (“Geneva III”); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T. 3516, 1949 U.S.T. LEXIS 434 (“Geneva IV”).

20. Additional Protocol I, reprinted in 16 I.L.M. 1391. While neither the United States nor Afghanistan is a signatory to Additional Protocol I, it is generally acknowledged that certain provisions are binding as a matter of customary international law. And although the terms of Common Article 3 specifically limit its scope to internal conflicts, it is considered by customary international law to have broader scope.

21. 38 I.L.M. 1471 (Sept. 6, 1999).

22. CAT, Art. 11.

23. Id., Art. 12.

24. Id., Art. 4.

25. Id., Art. 3.

26. For example, a lawsuit was recently filed by the Center for Constitutional Rights on behalf of Maher Arar, a Syrian-born Canadian citizen alleging that U.S. authorities deported him to Jordan in September 2002, where he was driven across the border and handed over to Syrian authorities. The Arar Complaint alleges that, although the U.S. Department of State’s 2003 Country Reports designated Syria as a government that practices systemic torture, U.S. officials allegedly relied on assurances from the Syrian government that Arar would not be tortured. Arar has alleged that he was tortured repeatedly in a Syrian prison for 10 months, often with cables and electrical cords. See Complaint in Maher Arar v. John Ashcroft, et al. (available at http://www.ccr-ny.org/v2/legal/Septembe ... plaint.pdf).

27. Geneva III, Art. 5.

28. We note that the Department of Defense has recently circulated for comment administrative review procedures for enemy combatants at Guantánamo Bay Naval Base. See http://www.defenselink.mil/news/ Mar2004/ d20040303ar.pdf. While welcoming such a review process, we do not consider it to meet the requirement for status determination under the Geneva Conventions.

29. Supra note 13.

30. Id. Article 4.1 states: “Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.”

31. Id. Article 3.1 states: “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

32. See Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (a statute “ought never to be construed to violate the law of nations, if any other possible construction remains”). See also United States v. P.L.O., 695 F. Supp. 1456, 1468 (S.D.N.Y. 1988) (noting “the lengths to which our courts have sometimes gone in construing domestic statutes so as to avoid conflict with international agreements...”).

33. Lawrence v. Texas, 539 U.S. 558 (2003).

34. This list is by no means comprehensive. Practices were selected for inclusion here because of their similarity to the practices allegedly used by U.S. agents with respect to detainees held in connection with the War in Afghanistan and the ongoing conflict in Afghanistan. The findings and concluding observations of the Committee Against Torture are available at http://www.unhchr.ch/tbs/doc.nsf.

35. Case of A. (name withheld) v. The Netherlands, Committee Against Torture , Comm. No. 91/1997 (1998), U.N. Doc. No. CAT/C/21/D/91/1997.

36. See Inquiry under Article 20: Committee Against Torture, Findings concerning Peru (2001), U.N. Doc. No. A/56/44, at para. 35.

37. Concluding Observations concerning Republic of Korea (1996), U.N. Doc. No. A/52/44, at para. 56.

38. Concluding Observations concerning New Zealand (1993), U.N. Doc. No. A/48/44, at para. 148.

39. See Inquiry Under Article 20: Committee Against Torture, Findings concerning Turkey (1993), U.N. Doc. No. A/48/44/Add.1, at para. 48.

40. Concluding Observations concerning Azerbaijan (2003), U.N. Doc. No. CAT/C/CR/30/1, at para. 5(b).

41. Concluding Observations concerning Germany (1993), U.N. Doc. No. A/48/44, at para. 167.

42. Id.; see also Concluding Observations concerning New Zealand (1998), U.N. Doc. No. A/53/44, at para. 175.

43. Concluding Observations concerning the United States (2000), U.N. Doc. No. A/55/44, at para. 179(e).

44. Concluding Observations concerning Australia (2000), U.N. Doc. No. A/56/44, at para. 52(b).

45. Supra note 36.

46. These techniques were found by the Committee to constitute “breaches of article 16 and also constitute torture as defined in article 1 of the Convention. This conclusion is particularly evident where such methods of interrogation are used in combination, which appears to be the standard case.” Concluding Observations concerning Israel (1997), U.N. Doc. No. A/52/44, at para. 257.

47. See 136 CONG. REC. 36,198 (daily ed. Oct. 27, 1990). The instrument of ratification included the declaration that “the provisions of Articles 1 through 16 of [CAT] are not self-executing.” See United Nations Treaty Collection: Declarations and Reservations, (available at http://www.unhchr.ch/html/menu3/b/treaty12_asp.htm).

In the case of a self-executing treaty, “no domestic legislation is required to give [it] the force of law in the United States.” Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984). By contrast, a non-self-executing treaty is one that “must be implemented by legislation before it gives rise to a private cause of action.” Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir. 1979).

48. See Ratification Status for CAT, United States of America (available at http://www.unhchr.ch). The U.S. has not opted out of the inquiry procedure under Article 20. It has entered a declaration accepting the interstate complaint procedure set up by Article 21. The U.S. has not, however, accepted the competence of the Committee under Article 22 to receive and consider complaints on behalf of individuals subject to its jurisdiction who claim to be victims of a violation of CAT.

49. See 136 CONG. REC. S17486-01 (daily ed. Oct. 27, 1990).

50. See 136 CONG. REC. 36192, 36198 (daily ed. Oct. 27, 1990).

51. Under international law, reservations are invalid if they violate the “object and purpose” of the treaty. See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 U.N.T.S. 331, at Art. 19(c). This Report assumes that the U.S. reservation with respect to Article 16 of CAT is valid.

52. Because the focus of this Report is on what laws apply to agents of the United States government in detention centers located outside of United States territory, this discussion does not examine state or federal penal or civil rights statutes that would also apply to interrogation occurring on American soil.

53. This had also been the position of the Ninth Circuit. See Al-Saher v. INS, 268 F.3d 1143 (9th Cir. 2001) (holding that severe beatings and cigarette burns sustained over periods of days, weeks and months constitutes torture). More recently, however, the Ninth Circuit has held that neither serious persecution (e.g., threats, unjust charges, fines, illegal searches and seizures) nor verbal abuse alone amount to torture. See Gui v. INS, 280 F.3d 1217 (9th Cir. 2002); Quant v. Ashcroft, 2003 U.S. App. LEXIS 6616 (9th Cir. 2003).

54. See, e.g., Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1016-17 (9th Cir. 2000) (individuals certified as extraditable by the Secretary of State who fear torture may petition for judicial review of the Secretary’s decision using CAT standards protecting against non-refoulement); Mu-Xing Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) (following Cornejo-Barreto’s holding that habeas review is available for CAT claims, but in the context of removal); Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003) (same).

55. The Senate Committee on the Judiciary acknowledged the relationship of 18 U.S.C. § 2340 to CAT and the Torture Victim Protection Act in a 2002 report. See S. REP. NO. 107-44 (2002), at 10-11.

56. A restrictive interpretation of the scope of the statute is found in the U.S. Dept. of Justice, Criminal Resource Manual 20 (Oct. 1997), which provides: “Section 2340A of Title 18, United States Code, prohibits torture committed by public officials under color of law against persons within the public official’s custody or control. . . . The statute applies only to acts of torture committed outside the United States. There is Federal extraterritorial jurisdiction over such acts whenever the perpetrator is a national of the United States or the alleged offender is found within the United States, irrespective of the nationality of the victim or the alleged offender.”

57. See S. REP. NO. 102-249 (1991) (stating that the TVPA would “carry out the intent of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was ratified by the U.S. Senate on October 27, 1990”).

58. See Report of the Committee on Foreign Relations, Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, S. EXEC. REP. NO. 30, 101st Cong., 2d Sess. 25 (1990) (statement of Mr. Pell) (citing Case of X. v. Federal Republic of Germany (No. 6694/74)).

59. Leon v. Wainwright, 734 F.2d 770 n.5 (11th Cir. 1984) (kidnapping conviction confirmed based on a confession obtained following a prior coerced confession).

60. Rochin v. California, 342 U.S. 165, 172 (1952).

61. County of Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998).

62. The UCMJ, discussed below, provides that no “cruel or unusual punishment” may be adjudged by any court-martial or inflicted upon any person subject to the UCMJ (10 U.S.C.S. § 855). In general, military courts have applied the Supreme Court’s interpretation of the Eighth Amendment to claims raised under this provision. See, e.g., United States v. Avila, 53 M.J. 99, 2000 CAAF LEXIS 569 (C.A.A.F. 2000). Thus, under the UCMJ, POWs and persons who under the law of war are subject to trial for military offences by a military tribunal are not to be punished in a cruel or unusual manner, within the meaning of the Eighth Amendment.

63. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). See also County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998) (citation omitted) (“We held in City of Revere v. Massachusetts Gen. Hospital that ‘the due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner’”).

64. Hudson v. McMillian, 503 U.S. 1, 7 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)).

65. Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

66. Compare U.S. v. Gatlin, 216 F.3d 207 (2d Cir 2000) with U.S. v. Corey, 232 F.3d 1166 (9th Cir 2000). However, the question was substantially mooted for most purposes by the passage of the Military Extraterritorial Jurisdiction Act of 2000, PUB. L. 106-503, 112 STAT. 2488, which subjects persons accompanying the armed forces abroad to U.S. civilian criminal jurisdiction, even if outside the “special maritime and territorial jurisdiction.”

67. See U.S. Dept. of State, Initial Report of the United States of America to the U.N. Committee against Torture, U.N. Doc. CAT/C/28/Add.5 (1999), at para. 178.

68. Amnesty International Report Charges U.S. is “Safe Haven” for Torturers Fleeing Justice; Eight Years On, U.S. Has Failed to Prosecute Single Individual for Torture, Amnesty International Press Release (2002) (available at http://www.amnestyusa.org/news/2002/usa04102002.html). See also William J. Aceves UNITED STATES OF AMERICA: A SAFE HAVEN FORTORTURERS (Amnesty International USA Publications 2002), at 50.

69. The UCMJ does not define the term POW. Thus it is uncertain whether POW in the UCMJ has the same meaning as in Geneva III.

70. United States v. Averette, 19 U.S.C.M.A. 363, 365-66, 41 C.M.R. 363, 365-66 (1970) (the phrase “in time of war” is limited to “a war formally declared by Congress”; even though the Vietnam conflict “qualified as a war as that word is generally used and understood[,] … such a recognition should not serve as a shortcut for a formal declaration of war, at least in the sensitive area of subjecting civilians to military jurisdiction”). Cf. United States v. Anderson, 17 U.S.C.M.A. 588, 589, 38 C.M.R. 386, 387 (1968) (United States’ involvement in Vietnam conflict “constitutes a ‘time of war’ . . . within the meaning of” Article 43(a) of the UCMJ, which provides that there is no statute of limitations over certain offenses committed “in time of war”).

71. The Court of Appeals for the Armed Forces (formerly the Court of Military Appeals) is a civilian Article I court hearing appeals from the intermediate appellate courts for each of the Army, Navy (and Marines) and Air Force, subject to possible appeal to the United States Supreme Court.

72. As previously noted, the Military Extraterritorial Jurisdiction Act of 2000, see supra note 66, eliminated any gap in jurisdiction resulting from Reid v. Covert by conferring jurisdiction on federal courts over civilians accompanying the armed forces abroad.

73. The protections of Article 55 apply to “any person subject to” the UCMJ. And as stated previously, the UCMJ would seem to apply to unlawful combatants under 10 U.S.C. § 818.

74. The Articles of War preceding the UCMJ prohibited “cruel and unusual punishment,” but the phrase was changed to “cruel or unusual punishment” in Article 55 (emphasis added). See Articles of War 41, Manual for Courts-Martial, U.S. Army, 1929 at 212, and 1949 at 284. The legislative history of Article 55 provides no rationale why the word “and” was changed to “or.” United States v. White, 54 M.J. 469, 2001 CAAF LEXIS 497 (C.A.A.F. 2001).

75. See United States v. Kinsch, 54 M.J. 641, 2000 CCA LEXIS 237 (A.C.C.A. 2000). See also Section I(C)(3)(b) of this Report for a fuller discussion of the Eighth Amendment prohibition of cruel and unusual treatment and punishment.

76. See United States v. Wappler, 2 C.M.A. 393, 9 C.M.R. 23, 1953 CMA LEXIS 897 (C.M.A. 1953); White, 54 M.J. at 473; United States v. Avila, 53 M.J. 99, 2000 CAAF LEXIS 569 (C.A.A.F. 2000).

77. Compare the federal criminal civil rights statutes, 18 U.S.C. §§ 241 and 242, and the civil statute 42 U.S.C. § 1983, all of which apply only where the victim is entitled to constitutional rights.

78. Manual for Courts-Martial, United States, (1995 edition) (the “Manual”), Paragraph 60.b (1-2). The Manual is issued by the President as a regulation under the authority granted by Congress under Article 3 of the UCMJ.

79. Manual, Paragraph 60.c (3).

80. According to the Manual, however, the doctrine of preemption “prohibits application of Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in Article 121, and if an element of that offense is lacking—for example, intent—there can be no larceny or larceny type offense, either under Article 121 or, because of preemption, under Article 134.” Manual, Paragraph 60.c (5)(a). In effect, Article 134 may not be employed to salvage a charge where the charge could not be sustained under the substantive offense provisions of the UCMJ or Federal statute. Accordingly, conduct which violated Article 55 discussed above or any other substantive provision of the UCMJ could not be charged under Article 134. These remain alternative, not cumulative provisions.

81. For example, murder (10 U.S.C. § 918), manslaughter (10 U.S.C. § 919), dereliction of duty (10 U.S.C. § 892).

For purposes of this Report, we assume that U.S. military interrogations of detainees are conducted for intelligence gathering purposes and not with an investigatory intent to elicit incriminating responses in anticipation of criminal prosecution. However, should the focus of the interrogation shift from an intelligence to a law enforcement nature, Miranda warnings under Article 31 of the UCMJ (10 U.S.C. § 831) would be required. The failure to give such warnings is a criminal offense under Article 98 of the UCMJ (10 U.S.C. § 898).

82. See Article 93 of the UCMJ (10 U.S.C. § 893). Two Marines face charges for assault, cruelty and dereliction of duty involving the treatment and death of an Iraqi prisoner. See Associated Press Newswires, Two Marines Face Trial After Iraqi Dies, Apr. 14, 2004; Tony Perry, Iraqi Prisoner Died After Marine Grabbed His Throat, Officials Say, L.A. TIMES, Oct. 22, 2003, at B06. It is not believed that the incident involved interrogation, but it is notable that such alleged offenses involved Marine infantry reservists who had not been trained in the treatment of prisoners (apart from one with relevant peacetime background) and are reported to have been given only a brief orientation before being assigned to this duty. As advocated elsewhere in this Report, proper training of U.S. military and intelligence personnel is essential to achieve compliance with the U.S.’s obligations under CAT.

83. Article 93 prohibits a person subject to the jurisdiction of the UCMJ from committing acts of“cruelty toward, or oppression or maltreatment of, any person subject to his orders.” The phrase “any person subject to his orders” in Article 93 is defined as: “not only those persons under the direct or immediate command of the accused but extends to all persons, subject to the…[UCMJ] or not, who by reason of some duty are required to obey the lawful orders of the accused, regardless whether the accused is in the direct chain of command over the person.” Manual for Courts-Martial, United States, (1995 edition), Part IV, P 17c(1).

84. An officer in Iraq was charged under Article 28 (10 U.S.C. § 928) for firing his pistol near an Iraqi detainee’s head in the course of an interrogation in order to elicit details about a planned ambush or assassination. Thomas E. Ricks, Army Accuses Officer In Iraq Of Firing Pistol Near Prisoner, WASH. POST, Oct. 30, 2003, at A14. The officer faced a possible court-martial and up to eight years imprisonment. Following a UCMJ Article 32 hearing (which is akin to a grand jury or preliminary hearing), the division’s commanding general ordered that the officer be fined and allowed to retire. See U.S. Officer Fined for Harsh Interrogation Tactics (Dec. 13, 2003) (available at http://www.cnn.com/2003/US/12/12/sprj.nirq.west.ruling).

85. See Section II(C) for a discussion of who qualifies as a “protected person” under Geneva IV.

86. “Common Article 3” provides that detainees “shall in all circumstances be treated humanely” and prohibits the following acts “at any time and in any place whatsoever”: “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;” and “outrages upon personal dignity, in particular humiliating or degrading treatment.” Common Article 3 also provides that the “wounded and sick shall be collected and cared for.”

Although neither the United States nor Afghanistan is a party to Additional Protocol I, it is generally acknowledged that relevant sections of Protocol I constitute either binding customary international law or good practice, in particular the minimum safeguards guaranteed by Article 75(2). See Michael J. Matheson, Remarks on the United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, reprinted in The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT’L L. & POL’Y415, 425-6 (1987).

Article 75 provides that “persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions” “shall be treated humanely in all circumstances” and that each state Party “shall respect the person, honour, convictions and religious practices of all such persons.” Paragraph 2 of Article 75 prohibits, “at any time and in any place whatsoever, whether committed by civilian or military agents”: “violence to the life, health, or physical or mental well-being of persons, in particular . . . torture of all kinds, whether physical or mental,” “corporal punishment,” and “mutilation”; “outrages upon personal dignity, in particular humiliating and degrading treatment . . . and any form of indecent assault”; and “threats to commit any of the foregoing acts.”

The U.S. rejection of Additional Protocol I was explained in a presidential note to the Senate in the following terms: “Protocol I. . . . would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves. These problems are so fundamental in character that they cannot be remedied through reservations. . . .” See 1977 U.S.T. LEXIS 465.

87. See Geneva III, Art. 5; see also U.S. Dept. of Army, Field Manual 27-10, “Law of Land Warfare”, Art. 71 (1956); U.S. Dept. of Army, REGULATION190-8 Military Police, “EnemyPrisoners of War, Retained Personnel, Civilian Internees and Other Detainees,” § 1-5 (a)(2) (1997).

88. See, e.g., Dep’t of Defense, Secretary Rumsfeld Media Availability en route to Camp X-Ray (Jan. 27, 2002) (available at http://www.defenselink.mil/news/Jan2002 ... 27sd2.html) (“Sometimes when you capture a big, large group there will be someone who just happened to be in there that didn’t belong in there.”) (remarks of Respondent, Secretary of Defense Donald H. Rumsfeld); Carlotta Gall, Freed Afghan, 15, Recalls a Year at Guantánamo, N.Y. TIMES, Feb. 11, 2004, at A03 (quoting released teenager claiming to have been captured by non-U.S. forces and handed over to the Americans while looking for a job); Jan McGirk, Pakistani Writes of His U.S. Ordeal, BOSTON GLOBE, Nov. 17, 2002, at A30 (“Pakistan intelligence sources said Northern Alliance commanders could receive $5000 for each Taliban prisoner and $20,000 for a[n] [al] Qaeda fighter. As a result, bounty hunters rounded up any men who came near the battlegrounds and forced them to confess.”).

89. See, e.g., Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 96 AM. J. INT’L L. 461, 476-77 (2002).

90. Article 4-A of Geneva III provides, in part:

Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

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

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

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. . . .


91. Article 43 of Additional Protocol I provides: “The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.”

92. See Geneva III, Art. 5; see also, U.S. Dept. of Army, Field Manual 27-10, “Law of Land Warfare”, Art. 71 (1956); U.S. Dept. of Army, REGULATION190-8 Military Police, “EnemyPrisoners of War, Retained Personnel, Civilian Internees and Other Detainees,” § 1-5 (a)(2) (1997). Under U.S. military regulations, a “competent tribunal” pursuant to Article 5 of Geneva III consists of three commissioned officers. The regulations also require that persons whose status is to be determined be advised of their rights; be permitted to attend all open sessions, call witnesses and question witnesses called by the tribunal; be permitted (but not compelled) to testify or otherwise address the tribunal; and be provided with an interpreter. The regulations provide for the tribunal’s determination of a detainee’s status in closed session by a majority vote and require a preponderance of the evidence to support the tribunal’s finding. See Erin Chlopak, Dealing with the Detainees at Guantánamo Bay: Humanitarian and Human Rights Obligations Under the Geneva Conventions, HUM RTS. BR.(Spring 2002), at 6, 8.

It should be noted that the “competent tribunal” outlined in ARMY REG. 190-8, § 1-6 is a quick, administrative process that is highly dependent upon the availability of witnesses during ongoing combat and support operations. Unsworn statements may be presented as evidence, and a record of the proceedings is developed. Although the tribunal may or may not include military lawyers such as members of the Staff Judge Advocate General (“JAG”), JAG lawyers will subsequently review the record. The record may also be the basis for any further proceedings for war crimes or for any other penalty.

Fundamentally, the tribunal determines only status and does not adjudicate liability. Tribunals are required under Geneva III only when status of the detainee is in doubt. When, for example, ten thousand uniformed members of a regular enemy infantry division surrender as a body, there is no need for a tribunal. When, however, non-uniformed, but possibly military, personnel mix with refugees, that is a classic situation for such tribunals.

93. Specifically, Article 13 of Geneva III provides:

Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.


94. Manooher Mofidi and Amy E. Eckert, “Unlawful Combatants” or “Prisoners of War”: The Law and Politics of Labels, 36 CORNELL INT’L L.J. 59, 89 (2003).

95. Murphy, supra note 89, at 476-77.

96. Id.

97. Id.

98. Powell asked that the Administration recognize that the Geneva Conventions apply to the conflict between the U.S. and Taliban regime and that the Administration convene a “competent tribunal” to determine the status of the prisoners pursuant to Article 5 of Geneva III. See Katharine Q. Seelye, A Nation Challenged: The Prisoners; Powell Asks Bush to Review Stand on War Captives, N.Y. TIMES, Jan. 27, 2002, at A01; William Safire, Editorial, Colin Powell Dissents, N.Y. TIMES, Jan. 28, 2002, at A15.

99. See supra note 18.

U.S. Secretary of Defense Donald Rumsfeld, responding to a request for clarification, referred to Article 4(a)(2) of Geneva III to explain why the Taliban could not qualify for POW status: “The Taliban [like Al Qaeda] also did not wear uniforms, they did not have insignia, they did not carry their weapons openly, and they were tied tightly at the waist to Al Qaeda. They behaved like them, they worked with them, they functioned with them, they cooperated with respect to communications, they cooperated with respect to supplies and ammunition.” Secretary of Defense Donald H. Rumsfeld, Remarks on Ferry from Air Terminal to Main Base, Guantánamo Bay, Cuba (Jan. 27, 2002) (transcript available at http://www.defenselink.mil/transcripts/ ... 27sd2.html).

100. Applying the four-part test from Article 4(a)(2) of Geneva III to the determination, the Lindh court found that the Taliban had an insufficient internal system of military command or discipline, that the “Taliban typically wore no distinctive sign that could be recognized by opposing combatants,” and that the “Taliban regularly targeted civilian populations in clear contravention of the laws and customs of war.” Lindh, 212 F. Supp. 2d at 558. Implicitly the Lindh Court held that the four conditions listed in Geneva III, Article 4(a)(2) also apply to “regular armed forces.” Id. at 557. In concluding that the Taliban were not regular armed forces, the Lindh court stated “[i]t would indeed be absurd for members of a so-called ‘regular armed force’ to enjoy lawful combatant immunity even though the force had no established command structure and its members wore no recognizable symbol or insignia, concealed their weapons, and did not abide by the customary laws of war. Simply put, the label ‘regular armed force’ cannot be used to mask unlawful combatant status.” Id., at n.35.

See also Int’l Comm. of the Red Cross, Commentaries to Article 4(a)(1) Convention (III)relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, ICRC Database on Int’l Humanitarian Law (available at http://www.icrc.org./ihl.nsf/b466ed681d ... 25040?Open Document) (“It is the duty of each State to take steps so that members of its armed forces can be immediately recognized as such and to see to it that they are easily distinguishable from members of the enemy armed forces or from civilians.”). See also, generally, INGRID DETTER, THE LAW OF WAR (Cambridge Univ. Press, 2nd ed., 2000), at 136; Christopher Greenwood, International Law and the War Against Terrorism,78 INTERNATIONAL AFFAIRS301, 316 (2002); Ruth Wedgwood, Al Qaeda, Terrorism, and Military Commissions, 96 AM. J. INT’L L. 328, 335 (2002).
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 4 OF 4 (The Association of the Bar of the City of New York Committee on International Human Rights Committee on Military Affairs and Justice's Report CONT'D.)

_______________

Notes (Cont'd.)

101. ICRC, Geneva Convention on Prisoners of War (Feb. 9, 2002) (available at http://www.icrc.org/Web/Eng/siteeng().nsf/iwpList454/26D99836025EA80Dc1256B6600610C90) (“International Humanitarian Law foresees that the members of armed forces as well as militias associated to them which are captured by the adversary in an international armed conflict are protected by the Third Geneva Convention. There are divergent views between the United States and the ICRC on the procedures which apply on how to determine that the persons detained are not entitled to prisoner of war status.”)

102. IACHR, DECISION ON REQUEST FOR PRECAUTIONARY MEASURES (DETAINEES AT GUANTÁNAMO BAY, CUBA), 41 I.L.M. 532, 533 (2002) (“It is . . . well-known that doubt exists as to the legal status of the detainees.”)

103. Amnesty International, Memorandum to the U.S. Government on the rights of people in U.S. custody in Afghanistan and Guantánamo Bay (available at http://web.amnesty.org/aidoc/aidoc_pdf. ... 510532.pdf) (The United States’ “selective approach to the Geneva Conventions threatens to undermine the effectiveness of international humanitarian law protections for any U.S. or other combatants captured in the future.”)

104, ICJ, Rule of Law Must be Respected in Relation to Detainees in Guantánamo Bay (Jan. 17, 2002) (available at http://www.icj.org./ews.php?id_article=2612&lang=eng) (“The United States has refused [POW] status to Taliban fighters even though, as members of the armed forces, they are entitled to it.”)

105. Kofi Annan, Press Encounter outside No. 10 Downing Street, London, (Feb. 25, 2002) (unofficial transcript available at http://www.un.org/aps/sg/offthecuff.asp?nid=103) (“The Red Cross has indicated that anyone who was arrested in the battlefield, or picked up in the battlefield, is a prisoner of war and they do not make a difference between the Al Qaeda and the Taliban. And under the convention, where there is a disagreement, normally you have an independent tribunal to resolve this.”).

106. Mary Robinson, Statement of the High Commissioner for Human Rights on Detention of Taliban and Al Qaeda Prisoners at U.S. Base in Guantánamo Bay, Cuba (Jan. 16, 2002) (available at http://www.unhchr.ch/hurricane/hurrican ... endocument) (“All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949.”)

107. See, generally, George H. Aldrich, The Taliban, Al Qaeda, and the Determination of Illegal Combatants, 96 AM. J. INT’L L. 891 (2002); Harold Hongju Koh, Agora: Military Commissions –The Case Against Military Commissions, 96 AM. J. INT’L L. 337 (2002); Neil McDonald & Scott Sullivan, Rational Interpretation in Irrational Times: The Third Geneva Convention and the War on Terror, 44 HARV. INT’L L.J. 301 (2003); Manooher Mofidi and Amy E. Eckert, “Unlawful Combatants” or “Prisoners of War”: The Law and Politics of Labels, 36 CORNELL INT’L L.J. 59 (2003); Michael Ratner, Moving Away from the Rule of Law: Military Tribunals, Executive Detentions and Torture, 24 CARDOZO L. REV. 1513 (2003).

108. See JENNIFER ELSEA, TREATMENT OF “BATTLEFIELD DETAINEES” IN THE WAR ON TERRORISM, CONG. RESEARCH SERV., RL31367, at 30 (2002) (available at http://fpc.state.gov/documents/organization/9655.pdf) (stating that the United States “has in the past interpreted [Article 5] as requiring an individualized assessment of status before privileges can be denied”). See also THE JUDGE ADVOCATE GENERAL’S SCHOOL, OPERATIONAL LAW HANDBOOK 22 (William O’Brien ed., 2003) (instructing judge advocates to “advise commanders that, regardless of the nature of the conflict, all enemy personnel should initially be accorded the protections of [Geneva III], at least until their status may be determined”).

109. Michael J. Matheson, while serving as Deputy Legal Advisor of the U.S. State Department, stated:

We [the United States] do support the principle that, should any doubt arise as to whether a person is entitled to combatant status, he be so treated until his status has been determined by a competent tribunal, as well as the principle that if a person who has fallen into the power of an adversary is not held as a prisoner of war and is to be tried for an offense arising out of the hostilities, he should have the right to assert his entitlement before a judicial tribunal and to have that question adjudicated.


Matheson, supra note 86.

110. Some have argued that the Taliban did comply with the requirements for Article 4(a)(2). See, e.g., ROBERT GOLDMAN AND BRIAN TITTEMORE, UNPRIVILEGED COMBATANTS AND THE HOSTILITIES IN AFGHANISTAN: THEIR STATUS AND RIGHTS UNDER INTERNATIONAL HUMANITARIAN RIGHTS LAW(The Am. Soc. Of Int’l Law Task Force on Terrorism, Task Force Paper) (available at http://asil.org/taskforce/goldman.pdf.)

111. Not only did the Taliban profess such an allegiance, but they were the strongest military partner in the Alliance, effectively controlling Afghanistan. See “Taliban Reach Zenith?,” 85 National Defense 10 (Oct. 1, 2000).

112. Article 1 of Geneva III states “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.” See also Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. REP. 14, 14 (June 27) (holding that Geneva III applies in all circumstances regardless of the actions of the other party to the conflict). See also, generally, Theodor Meron, The Humanization of Humanitarian Law, 94 AM. J. INT’L L. 239, 248-249 (2000).

113. As the ICRC Commentaries on Article 1 state: “it is not merely an engagement concluded on a basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. It is rather a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties. Each State contracts obligations ‘vis-à-vis’ itself and at the same time ‘vis-à-vis’ the others. The motive of the Convention is so essential for the maintenance of civilization that the need is felt for its assertion, as much out of respect for it on the part of the signatory State itself as in the expectation of such respect from all parties.” ICRC Commentaries to Article 1, Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, ICRC Database on Int’l Humanitarian Law (available at http://www.icrc.org./ihl.nsf/b466ed681d ... 24cdd?Open Document). See also Geneva III, Art. 13.

114. George H. Aldrich, The Taliban, Al Qaeda, and the Determination of Illegal Combatants, 96 AM. J. INT’L L. 891, 895-96 (2002) (noting that North Korea and North Vietnam denied POW status to all American prisoners on the basis of the allegation that they were all war criminals).

115. Colin Powell apparently made remarks to this effect in a memo leaked to the press on January 27, 2002. See Editorial, Bush’s Call on Captives, THE BOSTON GLOBE, Jan. 29, 2002, at A10.

116. Legal commentators have argued that persons who have directly participated in the War in Afghanistan and who do not qualify as POWs under Geneva III (i.e., detainees considered to be “unlawful combatants” by the U.S.) should automatically be considered “protected persons” under Geneva IV, unless other exceptions apply. See, e.g., Michael Ratner, Moving Away from the Rule of Law: Military Tribunals, Executive Detentions and Torture, 24 CARDOZO L. REV. 1513, 1518 -19 (2003) (“There is no gap between the two conventions”). Recent decisions of the International Criminal Tribunal for the Former Yugoslavia (ICTFY) have held that, “if an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of [Geneva IV].” See The Prosecutor v. Delalic, IT-96-21-T, at para. 271 (1998); see also Prosecutor v. Tadic, IT-94-I-A, 38 I.L.M. 158 (1999).

117. Such determination does not negate application of Common Article 3 to an “armed conflict not of an international character” or certain other provisions of international humanitarian law and the law of armed conflict.

118. The ICCPR, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316, 999 U.N.T.S. 171 was adopted in 1966 and came into force in 1976. It was ratified by the United States in 1992, subject to a number of reservations, understandings and declarations. See 138 CONG. REC. S4781-01 (1992).

119. Congressional ratification of the ICCPR with respect to the prohibition against cruel, inhuman or degrading treatment is subject to a reservation mirroring that taken by the U.S. under CAT: “The United States considers itself bound by Article 7 to the extent that ‘cruel, inhuman, or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments….” Id.

120. See Floyd Howell v. Jamaica, Communication No. 798/1998 (20 January 1998), CCPR/C/79/D/798/1998; Víctor Alfredo Polay Campos, Communication No. 577/1994 (6 November 1997), CCPR/C/61/D/577/1994; Dave Marais, Jr. v. Madagascar, Communication No. 49/1979 (19 April 1979), U.N. Doc. Supp. No. 40 (A/38/40) at 141 (1983); Raul Sendic Antonaccio v. Uruguay, Communication No. R.14/63 (28 November 1979), U.N. Doc. Supp. No. 40 (A/37/40) at 114 (1982).

121. See Concluding Observations of the Human Rights Committee (Israel), CCPR/C/79/Add.93 (1998).

122. See General Comment 20, U.N. GAOR Hum. Rts. Comm., 47th Sess., Supp. No. 40, para. 9, U.N. Doc. A/47/40 (1992).

123. Kindler v. Canada, Communication No. 470/1991, Human Rights Committee, U.N. Doc. CCPR/C/48/D/470/1990 (1993).

124. See, e.g., Poindexter v. Nash, 333 F.3d 372, 379 (2d Cir. 2003); Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003); Wesson v. U.S. Penitentiary Beaumont, TX, 305 F.3d 343, 348 (5th Cir. 2002); United States v. Duarte-Acero, 296 F.3d 1277, 1283 (11th Cir. 2002); Hain v. Gibson, 287 F.3d 1224, 1243 (10th Cir. 2002); United States v. Warden, FMC Rochester, 286 F.3d 1059, 1063 (8th Cir. 2002); Dutton v. Warden, FCI Estill, 2002 WL 255520, at *1 (4th Cir. 2002); Lal v. Roe, 2002 WL 31356505, at *1 (9th Cir. 2002); Beazley v. Johnson, 242 F.3d 248, 267 (5th Cir. 2001); Kenan v. U.S.P. Lompac, 2001 WL 1003213, at *1 n.1 (9th Cir. 2001); Igartua De La Rosa v. United States, 32 F.3d 8, 10 n.1 (1st Cir. 1994); see also Beshli v. Dept. of Homeland Security, 2003 WL 21693668, at *10 (E.D. Pa. July 22, 2003); Macharia v. United States, 238 F. Supp. 2d 13, 29-30 (D.D.C. July 30, 2002); Reaves v. Warden, U.S.P., 2002 WL 535398, at *9 (M.D. Pa. Mar. 22, 2002); Jama v. United States Immigration and Naturalization Service, 22 F. Supp. 2d 353, 364-65 (D.N.J. 1998).

125. See Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1114 (9th Cir. 2001) (recognizing that an international prohibition exists against “prolonged and arbitrary detention” and citing, among other sources to ICCPR, Art. 9); Martinez v. City of Los Angeles, 141 F.3d 1373, 1383-84 (9th Cir. 1998) (same); United States v. Romano, 706 F.2d 370, 375 n.1 (2d Cir. 1983) (citing to ICCPR for articulation of rights of a person charged with a criminal offense); Filartiga v. Peña-Irala, 630 F.2d 876, 883-84 (2d Cir. 1980) (citing ICCPR as one example that international law universally rejects torture).

126. In ratifying the ICCPR, the U.S. Senate declared that “The United States . . . accepts the competence of the Human Rights Committee to receive and consider communications under Article 41 in which a State Party claims that another State Party is not fulfilling its obligations under the Covenant.” See supra note 118.

127. See Optional Protocol to the International Covenant on Civil and Political Rights, 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302.

128. 1144 U.N.T.S. 123, reprinted in 9 I.L.M. 101 (1969).

129. See Manrique v. Peru, Report No. 56/98, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 983 (1998).

130. See, e.g., Request for Advisory Opinion OC-16, by the State of Mexico, of December 10, 1997, OEA/Ser.L/V/III.39, Doc. 5, at para. 23(d) (1998); Manrique v. Peru, Report No. 56/98, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 983, at paras. 87-88 (1998); Congo v. Ecuador, Report No. 63/99, Inter-Am. C.H.R., OEQ/Ser.L/V/II.95 Doc. 7 rev. at 475, at paras. 55-59 (1998); Lucio Parada Cea, et al. v. El Salvador, Report No. 1/99, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 531, at para. 70 (1998).

131. Villagran Morales et al. Case (the “Street Children” Case), Judgment of November 19, 1999, Inter-Am. Ct. H.R. (Ser. C) No. 63, at para. 74 (1999).

132. Loayza-Tamayo Case, Judgment of September 17, 1997, Inter-Am. Ct. H.R. (Ser. C) No. 33, at para. 57 (1997).

133. The U.S. is not a signatory to the Inter-American Convention To Prevent and Punish Torture, O.A.S. Treaty Series No. 67. Article 2 of this Convention defines torture as “any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.”

134. See, e.g., Cantoral Benavides Case, Judgment of August 18, 2000, Inter-Am. Ct. H.R. (Ser. C) No. 69, at paras. 43(a), 63(e) – (k), 104, 106 (2000); Loayza-Tamayo Case, Judgment of September 17, 1997, Inter-Am. Ct. H.R. (Ser. C) No. 33, at para. 58 (1997); Castillo-Paez Case, Judgment of November 3, 1997, Inter-Am. Ct. H.R. (Ser. C) No. 34, at para. 66 (1997); Suarez-Rosero Case, Judgment of November 12, 1997, Inter-Am. Ct. H.R. (Ser. C) No. 35, at para. 91 (1997).

135. Cantoral Benavides Case, Judgment of August 18, 2000, Inter-Am. Ct. H.R. (Ser. C) No. 69, at para. 100.

136. See Fairen-Garbi and Solis Corrales Case, Judgment of March 15, 1989, Inter-Am. Ct. H.R. (Ser. C) No. 6, at para 149 (1989); Godinez-Cruz Case, Judgment of January 20, 1989, Inter- Am. Ct. H.R. (Ser. C) No. 5, at para. 164 (1989); Velazquez-Rodriguez Case, Judgment of July 29, 1988, Inter-Am. Ct. H.R. (Ser. C) No. 4, at para. 156 (1988). In the Suarez-Roserocase, the Inter-American Court explained that incommunicado detention is “an exceptional measure” which can cause the detainee to suffer extreme psychological and moral injury. “[I]solation from the outside world produces moral and psychological suffering in any person, places him in a particularly vulnerable position, and increases the risk of aggression and arbitrary acts in prisons.” Suarez-Rosero Case, Judgment of November 12, 1997, Inter-Am. Ct. H.R. (Ser. C) No. 35, at para. 90 (1997).

137. See Castillo-Petruzzi Case, Judgment of May 30, 1999, Inter-Am. Ct. H.R. (Ser. C) No. 52, at para. 197 (1999).

138. Coard, et al. v. United States, Inter-Am. C.H.R. Report No. 109/99 (Sept. 29, 1999) (“Coard”). The Coard petitioners alleged that U.S. forces arrested them during the period in which it consolidated control over Grenada; that they were held incommunicado for many days; and that months passed before they were taken to a magistrate, or allowed to consult with counsel. “During this period petitioners were threatened, interrogated, beaten, deprived of sleep and food and constantly harassed.” Coard, at para. 17. The petitioners alleged that their whereabouts were kept secret, and that requests by lawyers and others to meet with them were rejected. They also alleged that U.S. forces subjected them to threats and physical abuse – including threatening to hand the detainees over to Caribbean authorities and allowing Caribbean authorities to “soften” the detainees. Coard, at paras. 18-19.

139. See supra note 128, Art. 33.

140. Id., Art. 41. The Commission has also been willing to apply other relevant legal standards, including the Geneva Conventions.

141. Id., Arts. 44 and 46. The Inter-American Court also has competence with respect to matters relating to the fulfillment of the commitments made by the States Parties to the American Convention. Id., Art. 33. Only States Parties and the Commission have the right to submit a case to the Inter-American Court, however, and only after the case has been considered by the Inter-American Commission. Id., Art. 61.

142. A federal habeas corpus petition on behalf of named detainees at Guantánamo which was filed in parallel was dismissed for lack of jurisdiction because “the military base at Guantánamo Bay, Cuba is outside the sovereign territory of the United States.” Rasul v. Bush, 215 F. Supp. 2d 55, 72 (D.D.C. 2002), cert. granted, 2003 WL 22070599 (U.S. Nov. 10, 2003).

143. See Rules of Procedure of the Inter-American Commission on Human Rights, Art. 25(1): “In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons.”).

144. Ref. Detainees in Guantánamo Bay, Cuba Request for Precautionary Measures, Inter-Am. C.H.R., Mar. 13, 2002, reprinted in 41 I.L.M. 532, 532. The Commission has ruled that OAS member states are subject to an international legal obligation to comply with a request for precautionary measures. See Fifth Report on the Situation of Human Rights in Guatemala, Inter-Am. C.H.R. OEA/Ser.L/V/II.111, Doc. 21 rev. (2001), at paras. 71-72 (2001); Case 12.243, Inter-Am. C.H.R. OEA/Ser.L/V/II.111, Doc. 21 rev. 1255 (2000), at para. 117.

145. 41 I.L.M. at 533.

146. Id.

147. Id., at 534. The Inter-American Commission invited the U.S. to provide information concerning compliance with these precautionary measures. In response, the United States argued that: (i) the Commission did not have jurisdiction to apply international humanitarian law, particularly the Geneva Conventions, as well as customary international humanitarian law; (ii) the Commission lacks authority to request precautionary measures with respect to States which are not party to the American Convention; and (iii) in any event, precautionary measures are neither necessary nor appropriate because the detainees are not entitled to prisoner of war status, do not meet Geneva Convention criteria for lawful combatants and are, instead, enemy combatants. See Response of the United States To Request For Precautionary Measures – Detainees in Guantánamo Bay, Cuba, reprinted in 41 I.L.M. 1015, 1028-1030 (2002). The U.S. stated, however, that it “is providing the detainees with protections consistent with international humanitarian law.” Id. at 1031. The U.S. also asserted that it had no obligation to convene a tribunal to determine the detainees’ status, and that the detainees had no right to counsel or to have access to courts. Id. at 1034. The U.S. Response did not address interrogation techniques. However, on December 2, 2003, the Pentagon announced that U.S. citizen and Taliban soldier Yaser Esam Hamdi would be given access to a lawyer, “as a matter of discretion and military policy,” but that the decision “should not be treated as a precedent” and was “subject to appropriate security restrictions.” See Associated Press Newswires, Pentagon OKs Lawyer For Terror Suspect, Dec. 3, 2003; Jerry Markon and Dan Eggen, U.S. Allows Lawyer For Citizen Held as “Enemy Combatant”, WASH. POST, Dec. 3, 2003, at A01.

148. Ref. Detainees in Guantánamo Bay, Cuba Request for Precautionary Measures, Inter-Am C.H.R., July 23, 2003, at 5.

149. In order for a state’s practice to be recognized as customary international law, it must fulfill two conditions:

Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinion juris sive necessitas. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.


North Sea Continental Shelf (F.R.G. v. Den.), 1969 I.C.J. 3, 44. See also Military and Paramilitary Activities (Nicar v. U.S.), 1986 I.C.J. 14, 14; R. JENNINGS & A. WATTS, OPPENHEIM’S INTERNATIONAL LAW, (9th ed. 1996); The Paquete Habana, 175 U.S. 677, 700 (1900) (cited with approval in First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 623 (1983)); U.S. v. Yousef, 327 F.3d 56, 92 (2d Cir. 2002).

150. GA Res. 3452 (XXX), U.N. GAOR, Supp. No. 34 at 91 (hereinafter the “Torture Resolution”).

151. See Report by the Special Rapporteur, U.N. Economic and Social Council, E/CN.4/1986/15, at para. 3. The report details state practice and opinio juris with respect to national legislation prohibiting torture. See also HERMAN J. BURGERS & HANS SANELIUS, THE UNITED NATIONS CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (Martinus Nijhoff Publishers/Kluwer Academic Publishers 1988), at 1-12. The widespread ratification of regional human rights instruments such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights and the African Charter on Human and Peoples’ Rights further reinforce the argument that torture is prohibited by customary international law. 152Report by the Special Rapporteur, id., at paras. 72, 82.

153. See RESTATEMENT (THIRD)OF FOREIGN RELATIONS LAW§ 702 (1986). See also Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir. 1996); In re Estate of Ferdinand Marcos, Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 716 (9th Cir. 1992); Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1006 (9th Cir. 2000); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003); Mehinovic v. Vuckovic, 198 Supp. 2d 1322 (N.D. Ga. 2002); Doe v. Islamic Salvation Front, 993 F. Supp. 3, 7 (D.D.C. 1998); Doe v. Unocal, 963 F. Supp. 880, 890 (C.D. Cal. 1997).

154. Vienna Convention on the Law of Treaties, 1969, Art. 53, 1155 U.N.T.S. 331.

155. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., Art. 5, U.N. Doc. A/810 (1948) (“no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”); Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 3452, 30 U.N. GAOR, Supp. No. 34, U.N. Doc. A/10034 (1976), at Art. 3 (“Exceptional circumstances such as a state of war or a threat of war, internal political stability or any other public emergency may not be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.”); ICCPR, supra note 118, at Art. 7 (“no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”); Additional Protocol I, supra note 20, at Art. 75; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (“Additional Protocol II”), reprinted in 16 I.L.M. 1442 (1977), at Art. 4; European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (1950), at Art. 3 (declaring that torture and inhuman or degrading treatment or punishment is prohibited); American Convention, supra note 128, at Art. 5 (providing that every person retain the right to be free from torture and ill-treatment); African Charter on Human and Peoples’ Rights, reprinted in 21 I.L.M. 58 (1981), at Art. 5 (prohibiting torture and ill-treatment).

156. Committee Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, United States of America, U.N. Doc. CAT/C/28/Add.5 (2000) (“U.S. Report Under CAT”), at para. 6.

157. 28 U.S.C. § 1350.

158. Id.

159. 22 U.S.C. § 2152.

160. See Part I of this Report; U.S. Report Under CAT, at paras. 50, 301 - 348.

161. See Abebe-Jira v. Negero, 72 F.3d 844 (11th Cir. 1996), cert. denied, 519 U.S. 830 (1996); Najarro de Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385 (5th Cir. 1985); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995); Paul v. Avril, 901 F. Supp. 330 (S.D. Fla 1994).

162. See U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices – 2002 (for Brazil, Burma, China, Egypt, Israel and the occupied territories, Jordan, Kenya, Democratic People’s Republic of Korea, Laos, Pakistan, Saudi Arabia, Togo, Turkey and Zimbabwe) (Mar. 31, 2003).

163. Id. (for Cameroon, Mongolia, Nigeria and Rwanda).

164. See, e.g., Filartiga v. Peña-Irala, 639 F.2d 876 (2d Cir. 1980) (allowing a torture claim to be prosecuted under the Alien Tort Claims Act, 28 U.S.C. § 1350); see also Forti v. Suarez-Mason, 672 F. Supp. 1531, 1541-43 (N.D. Cal. 1987) (recognizing torture and arbitrary detention as violations of customary international law, but finding that universal consensus regarding right to be free from cruel, inhuman and degrading treatment had not yet been established).

165. 213 U.N.T.S. 221.

166. The Republic of Ireland v. The United Kingdom, (1979-80) 2 E.H.R.R. 25.

167. Id., at 30-31.

168. Id., at 36.

169. Id., at 25.

170. Id., at 59.

171. Id., at 25.

172. Id., at 25.

173. Id., at 75-76.

174. Id., at 26.

175. Id., at 26.

176. Id., at 26.

177. Id.

178. Id., at 79-80. In separate annexed opinions, Judges Zekia, O’Donoghue and Evrigenis disagreed with the majority’s ruling that the five practices did not amount to torture.

In the years since the Republic of Ireland decision, neither time nor the ever-expanding threat of terrorism has diminished the ECHR’s commitment to maintaining an absolute prohibition against torture and inhuman or degrading treatment. In Chahal v. United Kingdom, Case No. 70/1995/576/662 (Nov. 15, 1996), for example, the ECHR rejected Great Britain’s argument that national security considerations justified the deportation of an Indian citizen to India on grounds that he was active in extremist Sikh organizations in England and was suspected of planning terrorist and other violent acts in the country. Chahal argued that, if deported, he would be tortured in India. In ruling that Chahal’s deportation by the United Kingdom would constitute a violation of Article 3 of the Convention, the ECHR stated:

Article 3 enshrines one of the most fundamental values of democratic society. . . . The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation.


Id., at 79. See also Aksoy v. Turkey, Case No. 100/1995/606/694 (Dec. 15, 1996), para. 62 (ruling that Turkish security forces’ treatment of a detainee suspected of membership and activity on behalf of the PKK, a Kurdish militant organization operating against the Turkish government, constituted torture).

179. Judgment Concerning The Legality Of The General Security Service’s Interrogation Methods, 38 I.L.M. 1471 (Sept. 9, 1999) (the “GSS Interrogation Methods Decision”).

180. Id., at 1472.

181. Excerpts printed in 23 Isr. L. Rev. 146 (1989).

182. Id., at 184.

183. Id.

184. Id., at 185.

185. Id., at 186.

186. GSS Interrogation Methods Decision, 38 I.L.M. at 1477.

187. Id., at 1474 -76. The Israeli Government argued that such interrogation methods did not need to be outlawed because, before resorting to physical pressure against detainees, GSS interrogators are instructed to “probe the severity of the danger that the interrogation is intending to prevent; consider the urgency of uncovering the information presumably possessed by the suspect in question; and seek an alternative means of preventing the danger.” Id., at 1475. The Israeli Government also argued that directives respecting interrogation provide that in cases where shaking – considered the harshest interrogation method of those examined in the GSS Interrogation Methods Decision – is to be used, “the investigator must first provide an evaluation of the suspect’s health and ensure that no harmcomes to him.” Id., at 1475.

188. Id., at 1480 - 81.

189. Id., at 1482.

190. Id.

191. Id., at 1482-84.

192. Id., at 1483.

193. Id., at 1485.

194. Id.

195. Id., at 1486.

196. Id., at 1487.

197. Id., at 1486.

198. Id., at 1481.

199. See 23 Isr. L. Rev., at 174.

200. CAT, Art. 2.

201. GSS Interrogation Methods Decision, 38 I.L.M. at 1481 (internal citations omitted).

202. Id., at 1488.
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THE COMMITTEE ON INTERNATIONAL HUMAN RIGHTS

Martin S. Flaherty, Chair*
Scott Horton (Immediate Past Chair)*
Jeanmarie Fenrich, Secretary
Charles Adler
Patricia C. Armstrong
Hon. Deborah A. Batts
Nicole Barrett
Aarthi Belani (student member)*
Seymour H. Chalif
Amy Christina Cococcia
Catherine Daly
Eric O. Darko
Jane M. Desnoyers
Mark K. Dietrich
Fiona M. Doherty
Barbara Fortson (former member)*
Aya Fujimura-Fanselow (student member)
Douglas C. Gray
William M. Heinzen
Alice H. Henkin
Sharon K. Hom
Miranda Johnson (student member)
Anil Kalhan
Mamta Kaushal
Christopher Kean
Elise B. Keppler
Katharine Lauer*
Sara Lesch
Yvonne C. Lodico
Marko C. Maglich
Elisabeth Adams Mason
Nina Massen
Sam Scott Miller
Elena Dana Neacsu
Dyanna C. Pepitone
Marny Requa (student member)
Sidney S. Rosdeitcher**
Margaret L. Satterthwaite*
Joseph H. Saunders
Christopher A. Smith (student member)
Katherine B. Wilmore

THE COMMITTEE ON MILITARY AFFAIRS AND JUSTICE

Miles P. Fischer, Chair*
Michael Mernin, Secretary
Donna Ahlstrand (former member)*
Steven Barrett
Myles Bartley
Philip Blum
Kenneth Carroll
Brian Cogan
Joshua Eisenberg
Matthew Hawkins
Peter Jaensch
Peter Kornman
Peter Langrind
Gerald Lee
Patricia Murphy
Rose Murphy
Harold Nathan
Timothy Pastore
Stanley Paylago*
Visuvanathan Rudrakumaran
Lawrence Sloan

* Members of the Subcommittee who prepared the report.
** Chair of the Subcommittee responsible for preparing the report.

The views expressed herein are solely those of the Association and the participating Committees.

The Committee on International Human Rights and Military Affairs and Justice would like to thank the following persons for their assistance in the preparation of the report: John Cerone (Executive Director, War Crimes Research Office, Washington College of Law, American University); Ken Hurwitz (Human Rights First); Professor Marco Sassòli (University of Geneva, professor of international law); Brigitte Oederlin and Gabor Rona (International Committee of the Red Cross); Paul, Weiss, Rifkind, Wharton & Garrison LLP (“Paul Weiss”) associates Katarina Lawergren and Marc Miller and former Paul Weiss associate Matias Milet; and New York University School of Law students Ari Bassin, Amber A. Baylor, Angelina Fisher, Tzung-lin Fu, David R. Hoffman, Jane Stratton and Stephanie S. Welch; and New York Law School student Holly Higgins. This report could not have been completed without the indefatigable efforts of Paul Weiss associate Liza Velazquez in helping edit the many drafts of the Report and consolidating the many views and comments of the Committees and Subcommittee into a coherent whole.

APPENDIX A

Letter 1

December 26, 2002

President George W. Bush
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500

Dear President Bush:

Human Rights Watch is deeply concerned by allegations of torture and other mistreatment of suspected al Qaeda detainees described in The Washington Post ("U.S. Decries Abuse hut Defends Interrogations") on December 26. The allegations, if true, would place the United States in violation of some of the most fundamental prohibitions of international human rights law. Any U.S. government official who is directly involved or complicit in the torture or mistreatment of detainees, including any official who knowingly acquiesces in the commission of such acts, would be subject to prosecution worldwide.

Human Rights Watch urges you to take immediate steps to clarify that the use of torture is not U.S. policy, investigate The Washington Post's allegations, adopt all necessary measures to end any ongoing violations of international law, stop the rendition of detainees to countries where they are likely to be tortured, and prosecute those implicated in such abuse.

I. Prohibitions Against Torture

The Washington Post reports that persons held in the CIA interrogation centers at Bagram air base in Afghanistan are subject to "stress and duress" techniques, including "standing or kneeling for hours" and being "held in awkward, painful positions." The Post notes that the detention facilities at Bagram and elsewhere, such as at Diego Garcia, are not monitored by the International Committee of the Red Cross, which has monitored the U.S. treatment of detainees at Guantanamo Bay. Cuba.

The absolute prohibition against torture is a fundamental and well-established precept of customary and conventional international law. Torture is never permissible against anyone, whether in times of peace or of war.

The prohibition against torture is firmly established under international human rights law. It is prohibited by various treaties to which the United States is a party, including the International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified in 1994. Article 7 of the ICCPR states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." The right to be protected from torture is non-derogable, meaning that it applies at all times, including during public emergencies or wartime.

International humanitarian law (the laws of war), which applies during armed conflict, prohibits the torture or other mistreatment of captured combatants and others in captivity, regardless of their legal status. Regarding prisoners-of-war, Article 17 of the Third Geneva Convention of 1949 states: "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind." Detained civilians are similarly protected by Article 32 of the Fourth Geneva Convention. The United States has been a party to the 1949 Geneva Conventions since 1955.

The United States does not recognize captured al Qaeda members as being protected by the 1949 Geneva Conventions, although Bush administration officials have insisted that detainees will be treated humanely and in a manner consistent with Geneva principles. However, at minimum, all detainees in wartime, regardless of their legal status, are protected by customary international humanitarian law. Article 75 ("Fundamental Guarantees") of the First Additional Protocol to the Geneva Conventions, which is recognized as restating customary International law, provides that "torture of all kinds, whether physical or mental" against "persons who are in the power of a party to the conflict and who do not benefit from more favorable treatment under the [Geneva] Conventions." shall "remain prohibited at any time and in any place whatsoever, whether committed by civilian or military agents." "[C]ruel treatment and torture" of detainees is also prohibited under common Article 3 to the 1949 Geneva Conventions, which is considered indicative of customary international law.

II. Possible U.S. Complicity in Torture

It is a violation of international law not only to use torture directly, but also to be complicit in torture committed by other governments. The Post reports being told by U.S. officials that ''[t]housands have been arrested and held with U.S. assistance in countries known for brutal treatment of prisoners." The Convention against Torture provides in Article 4 that all acts of torture, including "an act by any person which constitutes complicity or participation in torture," is an offense "punishable by appropriate penalties which take into account their grave nature."

The Post article describes the rendition of captured al Qaeda suspects from U.S. custody to other countries where they are tortured or otherwise mistreated. This might also be a violation of the Convention against Torture, which in Article 3 states: "No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.... For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights."

The U.S. Department of State annual report on human rights practices has frequently criticized torture in countries where detainees may have been sent. These include Uzbekistan, Pakistan, Egypt, Jordan and Morocco. The United States thus could not plausibly claim that it was unaware of the problem of torture in these countries.

III. International Prosecutions for Torture and Command Responsibility

Direct involvement or complicity in torture, as well as the failure to prevent torture, may subject U.S. officials to prosecution under intemational1aw.

The wilful torture or inhuman treatment of prisoners-of-war or other detainees, including "wilfully causing great suffering or serious injury to body or health," are "grave breaches" of the 1949 Geneva Conventions, commonly known as war crimes. Grave breaches are subject to universal jurisdiction, meaning that they can be prosecuted in any national criminal court and as well as any international tribunal with appropriate jurisdiction.

The Convention against Torture obligates States Parties to prosecute persons within their jurisdiction who are implicated or complicit in acts of torture. This obligation includes the prosecution of persons within their territory who committed acts of torture elsewhere and have not be extradited under procedures provided in the convention.

Should senior U.S. officials become aware of acts of torture by their subordinates and fail to take immediate and effective steps to end such practices, they too could be found criminally liable under international law. The responsibility of superior officers for atrocities by their subordinates is commonly known as command responsibility. Although the concept originated in military law, it now is increasingly accepted to include the responsibility of civil authorities for abuses committed by persons under their direct authority. The doctrine of command responsibility has been upheld in recent decisions by the international criminal tribunals for the former Yugoslavia and for Rwanda.

There are two forms of command responsibility: direct responsibility for orders that are unlawful and imputed responsibility, when a superior knows or should have known of crimes committed by a subordinate acting on his own initiative and fails to prevent or punish them. All states are obliged to bring such people to justice.

* * *

The allegations made by The Washington Post are extraordinarily serious. They have put the United States on notice that acts of torture may be taking place with U.S. participation or complicity. That creates a heightened duty to respond preventively. As an immediate step, we urge that you issue a presidential statement clarifying that it is contrary to U.S. policy to use or facilitate torture. The Post's allegations should be investigated and the findings made public. Should there be evidence of U.S. civilian or military officials being directly involved or complicit in torture, or in the rendition of persons to places where they are likely to be tortured, you should take immediate steps to prevent the commission of such acts and to prosecute the individuals who have ordered, organized, condoned, or carried them out. The United States also has a duty to refrain from sending persons to other countries with a history of torture without explicit and verifiable guarantees that no torture or mistreatment will occur.

Thank you for your attention to these concerns.

Sincerely,

Kenneth Roth
Executive Director

Cc: Colin Powell, Secretary of State
Donald Rumsfeld, Secretary of Defense
Condoleezza Rice, National Security Advisor

Letter 2

January 31, 2003

The Honorable George W. Bush
The White House
Washington, DC 20301-1010

Dear President Bush:

We are writing to you on a matter of great concern. As you are no doubt aware, on December 26th The Washington Post reported that your Administration has used, tacitly condoned or facilitated torture by third countries in the interrogation of prisoners. These reports are so flagrantly at odds with your many statements about the importance of human rights that we trust that you are equally disturbed by it.

You have repeatedly declared that the United States "will always stand firm for the nonnegotiable demands of human dignity." Surely there is no more basic and less negotiable requirement of human dignity than the right to be free of torture or cruel, inhuman or degrading treatment. As you know, under the Torture Convention "no exceptional circumstances whatsoever" may be invoked to justify torture and no party may return or extradite a person to another state where there are "substantial grounds for believing that he would be in danger of being subjected to torture." Likewise, under the Covenant on Civil and Political Rights, "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

As you declared in your State of the Union address, these solemn commitments of the United States are non-negotiable; in legal terms, there can be no derogation from them. You may also know that it was your father's Administration that sought and received overwhelming Senate support for the United States to ratify these two treaties.

The Administration's response to the outrageous statements made by numerous unnamed officials to The Post's reporters concerning United States use or tolerance of torture and cruel, inhuman and degrading treatment has thus far been wholly inadequate. Whatever the truth of The Post's allegations, without a more authoritative response to this high-profile story the world will conclude that the United States is not practicing what it preaches. America's authority as a champion of human rights will be seriously damaged.

What is clearly needed in this instance are unequivocal statements by you and your Cabinet officers that torture in any form or manner will not be tolerated by this Administration, that any US official found to have used or condoned torture will be held accountable, and that the United States would neither seek nor rely upon intelligence obtained through torture in a third country. These statements need to be accompanied by clear written guidance applicable to everyone engaged in the interrogation and rendition of prisoners strictly prohibiting the use or tolerance of torture or cruel, inhuman or degrading treatment of prisoners and mandating full compliance with the Geneva conventions requirements for the treatment of prisoners.

We urge you in the strongest terms to take this opportunity to demonstrate that torture and cruel, inhuman and degrading treatment is, in fact as well as word, non-negotiable.

Sincerely,

William Schulz
Amnesty International USA

Kenneth Roth
Human Rights Watch

Gay McDougall
International Human Rights Law Group

Louise Kautrow
International League for Human Rights

Michael Posner
Lawyers Committee for Human Rights

Robin Phillips
Minnesota Advocates for Human Rights

Len Rubenstein
Physicians for Human Rights

Todd Howland
RFK Memorial Center for Human Rights

Letter 3

NATIONAL CONSORTIUM OF
TORTURE TREATMENT PROGRAMS
74-09 37th Ave. Room 412. Jackson Heights. New York, U.S.A.
Tel: 718-899-1233. Ext. 101; Fax: 718-457-6071

February 5, 2003

President George Bush
Fax 202-456-2461

Dear President Bush:

The National Consortium of Torture Treatment Programs consists of 33 programs throughout the United States that provide medical and mental health care, as well as legal and social services, to survivors of politically motivated torture. I am writing on behalf of our membership to request a dialogue with the Administration regarding recent allegations published in the Washington Post that certain U.S. practices, including "stress and duress tactics" and "rendering" of detainees to foreign intelligence services, may amount to or result in torture.

Members of the Consortium commend your strong denunciation of torture in Iraq during this week's State of the Union address. As health professionals caring for torture victims, we have witnessed first-hand the devastating impact torture has on the health and well-being of its victims. Every day we see the after-effects of the abuses you described during your address. We see the scars from shackles, the marks from cigarette bums inflicted during interrogation, the wounds and broken bones from severe beatings, and the disfiguration from acid or flames. We listen to stories of shame and humiliation, of haunting nightmares and memories that will not go away, and of lives shattered by extreme cruelty.

The individuals we care for are among the estimated 500,000 torture survivors now living in the United States. Iraq is only one of 100 countries represented in our client populations last year. Sadly, torture is perpetrated or condoned in nations across the world.

The United States has stated its commitment to end torture in our world, and we commend the Department of State for its continuing efforts in this regard. This nation has also demonstrated its commitment to healing torture survivors who live in this country and abroad through passage of the Torture Victims Relief Act in 1998 and subsequent appropriations to the U.S. Office of Refugee Resettlement, the U.S. Agency for International Development, and the United Nations Voluntary Fund for Victims of Torture.

In order to maintain our country's commitment to end torture and support healing, we are deeply concerned by the allegations published in the Washington Post. The National Consortium of Torture Treatment Programs takes no position on the credibility of these allegations. We urge the United States government to fully investigate the allegations of torture of detainees, and to place on the public record our nation's policies and practices with respect to torture.

We request a meeting to discuss a response to the Washington Post allegations. We suggest that participants might include Anthony Banbury, William Haynes, William Taft, IV, and Lorne Craner. I hope a member of your staff will contact my office to schedule such a meeting.

Mr. President, torture undermines the fabric of society through fear and terror. As the U.S. Congress articulated in its resolution of June 20, 2001, "When one individual is tortured, the scars inflicted by such horrific treatment are not only found in the victim but in the global system, as the use of torture undermines, debilitates, and erodes the very essence of that system." We urge you to authorize an investigation of the allegations published in the Washington Post, to communicate the results of that investigation to the American people, and to ensure that the United States does not and will not participate in torture.

Respectfully,

Ernest Duff
President
National Consortium of Torture Treatment Programs

cc: Anthony Banbury, Acting Senior Director for Democracy, Human Rights and 1nternational Operations, National Security Council, Fax (202) 456-9140
The Honorable Lorne Craner, Assistant Secretary of State for Democracy, Human Rights and Labor, Fax (202) 647-5283
William Haynes, General Counsel, Department of Defense, Fax (703) 693-7278
William Taft, N, Legal Advisor, Department of State, Fax (202)647-1037

Letter 4

PATRICK LEAHY
VERMONT

COMMITTEES
AGRICULTURE, NUTRITION, AND
FORESTRY
APPROPRIATIONS
JUDICIARY

UNITED STATES SENATE
WASHINGTON, DC 20510-4502

June 2, 2004

The Honorable Condoleezza Rice
National Security Adviser
The White House
Washington, DC 20500

Dear Dr. Rice:

Over the past several months, unnamed Administration officials have suggested in several press accounts that detainees held by the United States in the war on terrorism have been subjected to "stress and duress" interrogation techniques. including beatings, lengthy sleep and food deprivation, and being shackled in painful positions for extended periods of time. Our understanding is that these statements pertain in particular to interrogations conducted by the Central Intelligence Agency in Afghanistan and other locations outside the United States. Officials have also stated that detainees have been transferred for interrogation to governments that routinely torture prisoners.

These assertions have been reported extensively in the international media in ways that could undermine the credibility of American efforts to combat torture and promote the rule of law, particularly in the Islamic world.

I appreciate President Bush's statement, during his recent meeting with U.N. High Commissioner for Human Rights Sergio De Mello, that the United States does not, as a matter of policy, practice torture. I also commend the Administration for its willingness to meet with and respond to the concerns of leading human rights organizations about reports of mistreatment of detainees. At the same time, I believe the Administration's response thus far, including in a recent letter to Human Rights Watch from Department of Defense General Counsel William Haynes, while helpful, leaves important questions unanswered.

The Administration understandably does not wish to catalogue the interrogation techniques used by U.S. personnel in fighting international terrorism. But it should affirm with clarity that America upholds in practice the laws that prohibit the specific forms of mistreatment reported in recent months. The need for a clear and thorough response from the Administration is all the greater because reports of mistreatment initially arose not from outside complaints, but from statements made by administration officials themselves.

With that in mind, I would appreciate your answers to the following questions:

First, Mr. Haynes' letter states that when questioning enemy combatants, U.S. personnel are required to follow "applicable laws prohibiting torture." What are those laws? Given that the United States has ratified the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT), is this Convention one of those laws, and does it bind U.S. personnel both inside and outside the United States?

Second, does the Administration accept that the United States has a specific obligation under the CAT not to engage in cruel, inhuman and degrading treatment?

Third, when the United States ratified the CAT, it entered a reservation regarding its prohibition on cruel, inhuman and degrading treatment, stating that it interprets this term to mean "the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth amendments to the Constitution." Are all U.S. interrogations of enemy combatants conducted in a manner consistent with this reservation?

Fourth, in its annual Country Reports on Human Rights Practices, the State Department has repeatedly condemned many of the same "stress and duress" interrogation techniques that U.S. personnel are alleged to have used in Afghanistan. Can you confirm that the United States is not employing the specific methods of interrogation that the State Department has condemned in countries such as Egypt, Iran, Eritrea, Libya, Jordan and Burma?

Fifth, the Defense Department acknowledged in March that it was investigating the deaths from blunt force injury of two detainees who were held at Bagram air base in Afghanistan. What is the status of that investigation and when do you expect it to be completed? Has the Defense Department of the CIA investigated any other allegations of torture or mistreatment of detainees, and if so, with what result? What steps would be taken if any U.S. personnel were found to have engaged in unlawful conduct?

Finally, Mr. Haynes' letter offers a welcome clarification that when detainees are transferred to other countries, "U.S. government instructions are to seek and obtain appropriate assurances that such enemy combatants are not tortured." How does the Administration follow up to determine if these pledges of humane treatment are honored in practice, particularly when the governments in question are known to practice torture?

I believe these questions can be answered without revealing sensitive information or in any way undermining the fight against international terrorism. Defeating terrorism is a national security priority, and no one questions the imperative of subjecting captured terrorists to thorough and aggressive interrogations consistent with the law.

The challenge is to carry on this fight while upholding the values and laws that the distinguish us from the enemy we are fighting. As President Bush has said, America is not merely struggling to defeat a terrible evil, but to uphold "the permanent rights and the hopes of mankind." I hope you agree that clarity on this fundamental question of human rights and human dignity is vital to that larger struggle.

Thank you for your assistance.

Sincerely,

PATRICK LEAHY

United States Senator
[handwritten note: Condi -- I want to make
sure we are on the
right moral plain if an
American is being held
abroad.
Pat]

Letter 5

THE ASSOCIATION OF THE BAR
OF THE CITY OF NEW YORK
42 WEST 44TH STREET
NEW YORK CITY, NEW YORK 10036-6690

STANDING COMMITTEE ON MILITARY AFFAIRS AND JUSTICE

COMMITTEE CHAIR
Miles P. Fischer, Esq.
440 E. 79th St., Apt. 14D
New York, NY 10021
(212) 838-7380 t
(212) 838-7463 f
mpfischer@aol.com

COMMITIEE SECRETARY
Michael Memin, Esq.
Budd Lamer Rosenbaum Greenberg & Sade
150 JFK Pkwy
Short Hills, NJ 07078
(973) 315-4421 t
(973) 379-7734 f
mmemin@budd-lamer.com

June 4, 2003

Scott W. Muller
General Counsel
Central Intelligence Agency
1 George Bush Center
Washington, D.C. 20505

Dear Mr. Muller:

We are writing on behalf of the Committees on International Human Rights and Military Affairs & Justice of the Association of the Bar of the City of New York. Founded in 1870, the Association is an independent non-governmental organization with a membership of more than 22,000 lawyers, judges, law professors and government officials, principally from New York City but also from throughout the United States and from 40 other countries. The Committee on International Human Rights investigates and reports on human rights conditions around the world. The Committee on Military Affairs & Justice engages in matters of policy and law relating to the United States Armed Forces. The two committees are investigating reports about the treatment of detainees subject to CIA interrogation at locations outside of the United States, including the centers at Bagram air base in Afghanistan and on the island of Diego Garcia and at Guantanomo.

Over the past six months, several newspapers (the Washington Post, The New York Times and the Wall Street Journal) have reported allegations of abusive treatment by U.S. interrogators of people detained at Bagram. As described in these reports, some of the abusive treatment would qualify under international law as torture or cruel, inhuman and degrading treatment. In addition, the reports state that in some instances, people suspected of having links to terrorism have been apprehended by U.S. officials outside of the United States and rendered to countries where they can be subject to interrogation tactics -- including torture -- that are illegal in the United States.

Mr. William J. Haynes II, General Counsel of the Defense Department, recently wrote in response to a letter from the Executive Director of Human Rights Watch to President Bush raising these issues -- that "[w]hen questioning enemy combatants, U.S. personnel are required to follow [United States] policy and applicable laws prohibiting torture." In addition, Mr. Haynes confirmed that in the event of a transfer of "detained enemy combatants to other countries for continued detention on [the U.S. Government's] behalf, U.S. Government instructions are to seek and obtain appropriate assurances that such enemy combatants are not tortured."

Our Committees would like an opportunity to review the Directorate of Operations instructions and any other relevant materials giving guidance to interrogators, so that we may assess the clarity and specificity of the instructions given to U.S. interrogators and other U.S. personnel responsible for handling detainees. It is essential that U.S. personnel understand precisely those actions which are permissible and those which are prohibited by law. Our Committees, therefore, would appreciate it if your office could send us copies of the Directorate of Operations instructions and any other relevant material providing guidance to interrogators.

We are requesting only unclassified materials or classified materials redacted to remove classified information. After we have had an opportunity to review the materials, we would like to arrange a meeting with you to discuss these issues further.

We look forward to hearing from you.

Respectfully,

MILES P. FISCHER, CHAIR
COMMITTEE ON MILITARY AFFAIRS & JUSTICE

SCOTT HORTON, CHAIR
COMMITTEE ON INTERNATIONAL HUMAN RIGHTS

Letter 6

PATRICK LEAHY
VERMONT

COMMITTEES
AGRICULTURE, NUTRITION, AND
FORESTRY
APPROPRIATIONS
JUDICIARY

UNITED STATES SENATE
WASHINGTON, DC 20510-4502

September 9, 2003

Mr. William J. Haynes, II
General Counsel
Department of Defense
1600 Defense Pentagon
Washington, DC 20301-1600

Dear Mr. Haynes:

Thank you for your June 25, 2003, letter concerning U.S. policy with regard to the treatment of detainees held by the United States.

I very much appreciate your clear statement that it is the policy of the United States to comply with all of its legal obligations under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). I also welcome your statement that it is United States policy to treat all detainees and conduct all interrogations, wherever they may occur, in a manner consistent with our government's obligation, under Article 16 of the CAT, "to prevent other acts of cruel, inhuman, or degrading treatment or punishment" as prohibited under the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution.

This statement of policy rules out the use of many of the "stress and duress" interrogation techniques that have been alleged in press reports over the last several months, including beatings, lengthy sleep and food deprivation, and shackling detainees in painful positions for extended periods of time. It should also go a long way towards answering concerns that have been expressed by our friends overseas about the treatment of detainees in U.S. custody. It should strengthen our nation's ability to lead by example in the protection of human rights around the world, and our ability to protect Americans, including our service members, should they be detained abroad.

At the same time, the ultimate credibility of this policy will depend on its implementation by U.S. personnel around the world. In that spirit, I would appreciate it if you could clarify how the administration's policy to comply with the CAT is communicated to those personnel directly involved in detention and interrogation? As you note in your letter, the U.S. obligation under Article 16 of the CAT is to "undertake ... to prevent" cruel, inhuman or degrading treatment or punishment. What is the administration doing to prevent violations? Have any recent directives, regulations or general orders been issued to implement the policy your June 25 letter describes? If so, I would appreciate receiving a copy.

I understand that interrogations conducted by the U.S. military are governed at least in part by Field Manual 34-52, which prohibits "the use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind." This field manual rightly stresses that "the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear." Are there further guidelines that in any way add to, define, or limit the prohibitions contained in this field manual? What mechanisms exist for ensuring compliance with these guidelines?

Most important, I hope you can assure me that interrogators working for other agencies. including the CIA, operate from the same guidelines as the Department of Defense. If CIA or other interrogation guidelines in use by any person working for or on behalf of the U.S. government differ, could you clarify how, and why?

I am pleased that before handing over detainees for interrogation to third countries, the United States obtains specific assurances that they will not be tortured. I remain concerned, however, that mere assurances from countries that are known to practice torture systematically are not sufficient. While you state that the United States would follow up on any credible information that such detainees have been mistreated, how would such information emerge if no outsiders have access to these detainees? Has the administration considered seeking assurances that an organization such as the International Committee for the Red Cross have access to detainees after they have been turned over? If not, I urge you to do so.

Finally, has the administration followed up on specific allegations reported in the press that such detainees may have been tortured, including claims regarding a German citizen sent to Syria in 2001, and statements by former CIA official Vincent Cannistrano concerning an al Qaeda detainee sent from Guantanamo to Egypt (see enclosed articles)?

Thank you again for your response to my last letter.

With best regards,

PATRICK LEAHY
United States Senator

handwritten note: I appreciate your concern.

Letter 7

GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
1000 DEFENSE PENTAGON
WASHINGTON, D.C. 30301-1600

April 2, 2003

Mr. Kenneth Roth
Executive Director
Human Rights Watch
350 Fifth Avenue, 34'h Floor
New York, NY 10118

Dear Mr. Roth:

This is in response to your December 26, 2002, letter to the President and other letters to senior administration officials regarding detention and questioning of enemy combatants captured in the war against terrorists of global reach after the terrorist attacks on the United States on September 11, 2001.

The United States questions enemy combatants to elicit information they may possess that could help the coalition win the war and forestall further terrorist attacks upon the citizens of the United States and other countries. As the President reaffirmed recently to the United Nations High Commissioner for Human Rights, United States policy condemns and prohibits torture. When questioning enemy combatants, U.S. personnel are required to follow this policy and applicable laws prohibiting torture.

If the war on terrorists of global reach requires transfer of detained enemy combatants to other countries for continued detention on our behalf, U.S. Government instructions are to seek and obtain appropriate assurances that such enemy combatants are not tortured.

U.S. Government personnel are instructed to report allegations of mistreatment of or injuries to detained enemy combatants, and to investigate any such reports. Consistent with these instructions, U.S. Government officials investigate any known reports of mistreatment or injuries to detainees.

The United States does not condone torture. We are committed to protecting human rights as well as protecting the people of the United States and other countries against terrorists of global reach.

Sincerely,

William J. Haynes II

Letter 8

CENTRAL INTELLIGENCE AGENCY
Washington, D.C. 20505

23 June 2003

General Counsel

Miles P. Fischer, Esquire
Scott Horton, Esquire
Association of the Bar
of the City of New York
42 West 44th Street
New York, New York 10036-6690

Dear Messrs, Fischer and Horton:

Thank you for your letter of 4 June regarding the treatment of enemy combatants detained in the wake of the terrorist attacks on the United States of 11 September 2001.

As you know, the Director of Central Intelligence is required by law to protect intelligence sources and methods, 50 U.S.S. 5403-3 (c) (6), and the Central Intelligence Agency (CIA) does not comment on operational activities or practices. I can assure you, however, that in its various activities around the world the CIA remains subject to the requirements of US law. Pursuant to Executive Order 12333, any allegations of unlawful behavior are reported by the CIA to the Department of Justice, and may be investigated both by that Department and by the Agency's own Presidentially appointed, Senate confirmed Inspector General. The Agency also provides the Congressional intelligence oversight committees with briefings and materials about its various activities, as provided by 50 U.S.C. §§413a, 413b(b).

I appreciate the concerns raised in your letter as well as the thoughtfulness of your questions. While I acknowledge that this response does not provide you with all the information you have requested, I want you to know that I share your committees' interest in ensuring that US personnel understand their obligations under US law and comply with them.

Sincerely,
Scott W. Muller

Letter 9

GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
1600 DEFENSE PENTAGON
WASHINGTON, D.C. 20301-1600

June 25, 2003

The Honorable Patrick J. Leahy
United States Senate
Washington, D.C. 20510

Dear Senator Leahy:

I am writing in response to your June 2, 2003, letter to Dr. Rice raising a number of legal questions regarding the treatment of detainees held by the United States in the wake of the September 11, 2001, attacks on the United States and in this Nation's war on terrorists of global reach. We appreciate and fully share your concern for ensuring that in the conduct of this war against a ruthless and unprincipled foe, the United States does not compromise its commitment to human rights in accordance with the law.

In response to your specific inquiries, we can assure you that it is the policy of the United States to comply with all of its legal obligations in its treatment of detainees, and in particular with legal obligations prohibiting torture. Its obligations include conducting interrogations in a manner that is consistent with the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT") as ratified by the United States in 1994. And it includes compliance with the Federal anti-torture statute, 18 U.S.C. §§ 2340-2340A, which Congress enacted to fulfill U.S. obligations under the CAT. The United States does not permit, tolerate or condone any such torture by its employees under any circumstances.

Under Article 16 of the CAT, the United States also has an obligation to "undertake ... to prevent other acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture." As you noted, because the terms in Article 16 are not defined, the United States ratified the CAT with a reservation to this provision. This reservation supplies an important definition for the term "cruel, inhuman, or degrading treatment or punishment." Specifically, this reservation provides that "the United States considers itself bound by the obligation under Article 16 to prevent 'cruel, inhuman or degrading treatment or punishment', only in so far 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." United States policy is to treat all detainees and conduct all interrogations, wherever they may occur, in a manner consistent with this commitment.

As your letter stated, it would not be appropriate to catalogue the interrogation techniques used by U.S. personnel in fighting international terrorism, and thus we cannot comment on specific cases or practices. We can assure you, however, that credible allegations of illegal conduct by U.S. personnel will he investigated and, as appropriate, reported to proper authorities. In this connection, the Department of Defense investigation into the deaths at Bagram, Afghanistan, is still in progress. Should any investigation indicate that illegal conduct has occurred, the appropriate authorities would have a duty to take action to ensure that any individuals responsible are held accountable in accordance with the law.

With respect to Article 3 of the CAT, the United States does not "expel, return ('refouler') or extradite" individuals to other countries where the U.S. believes it is "more likely than not" that they will be tortured, Should an individual be transferred to another country to be held on behalf of the United States, or should we otherwise deem it appropriate, United States policy is to obtain specific assurances from the receiving country that it will not torture the individual being transferred to that country. We can assure you that the United States would take steps to investigate credible allegations of torture and take appropriate action if there were reason to believe that those assurances were not being honored.

In closing, I want to express my appreciation for your thoughtful questions. We are committed to protecting the people of this Nation as well as to upholding its fundamental values under the law.

Sincerely,

William J. Haynes II
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PART 1 OF 22 (The Mikolashek Report)

The Mikolashek Report

Department of the Army
The Inspector General
Detainee Operations Inspection

21 July 2004

Table of Contents

• Executive Summary
• Chapter 1 - Background and Inspection Concept
• Chapter 2 - Inspection Methodology
• Chapter 3 - Capture, Care, and Control of Detainees
• Chapter 4 - Interrogation Operations
• Chapter 5 - Other Observations
• Chapter 6 - Summary of Recommendations
• Appendix A - References
• Appendix B - Assessment Directive
• Appendix C - Locations Visited
• Appendix D - Inspection Tools
• Appendix E - Standards
• Appendix F- Abbreviations and Acronyms

DEPARTMENT OF THE ARMY
WASHINGTON DC 20310

JUL 21, 2004

MEMORANDUM FOR CHIEF OF STAFF, ARMY

SUBJECT: Department of the Army Inspector General Inspection Report on Detainee Operations

I approve the Department of the Army Inspector General Inspection Report on Detainee Operations dated 21 July 2004.

I direct:

a. As an exception to policy, the unclassified portion of this report be released, without redactions, through posting on the Army website.

b. Findings and recommendations concerning Central Command be forwarded through the Joint Staff to Central Command for consideration.

c. The Director of the Army Staff task the appropriate Army Staffs and major Army commands with implementing the recommendations specified in the inspection report and then track their compliance.

d. The Department of the Army Inspector General disseminate the inspection report to the Army leadership.

R. L. Brownlee
Acting Secretary of the Army

FOREWORD

This inspection report responds to the Acting Secretary of the Army's 10 February 2004 directive to conduct a functional analysis of the Army's conduct of detainee and interrogation operations to identify any capability shortfalls with respect to internment, enemy prisoner of war, detention operations, and interrogation procedures and recommend appropriate resolutions or changes if required.

Based on this inspection:

• the overwhelming majority of our leaders and Soldiers understand the requirement to treat detainees humanely and are doing so.
• we were unable to identify system failures that resulted in incidents of abuse. These incidents of abuse resulted from the failure of individuals to follow known standards of discipline and Army Values and, in some cases, the failure of a few leaders to enforce those standards of discipline.
• the current operational environment demands that we adapt; our Soldiers are adapting; so we must also adapt our doctrine, organization, and training.

We examined the two key components of detainee operations: the capture, security and humane treatment of the detainees; and the conduct of interrogation operations in order to gain useful intelligence. While we did not find any systemic failures that directly led to the abusive situations we reviewed, we have made recommendations to improve the effectiveness of detainee operations.

We found that Soldiers are conducting operations under demanding, stressful, and dangerous conditions against an enemy who does not follow the Geneva Conventions. They are in an environment that puts a tremendous demand on human intelligence, particularly, at the tactical level where contact with the enemy and the people are most intense. They do understand their duty to treat detainees humanely and in accordance with laws of land warfare. These Soldiers understand their obligation to report incidents of abuse when they do occur, and they do so. Our leaders have been developed, trained and educated to adapt to the environment in which they find themselves. They understand their tasks, conditions and standards. The conditions of the current operations have caused them to adapt their tactics, techniques and procedures within their capabilities to accommodate this operational environment.

Expanding our doctrine to provide commanders flexibility and adaptability within well-defined principles will better enable them to conduct these operations. Our training and education systems at the individual, unit, and institutional levels must continue to be thorough and realistically simulate the intensity of the environment in which we now operate.

While the primary purpose of this inspection was not to examine specific incidents of abuse, we did analyze reported incidents to determine their root or fundamental causes. To provide a context for the incidents, we noted that an estimated 50,000 individuals were detained for at least some period of time by U.S. Forces during the conduct of OPERATION ENDURING FREEDOM and OPERATION IRAQI FREEDOM. U.S. Forces’ contact with the local populace at checkpoints, on patrols, and in other situations increases the number of contacts well in excess of this 50,000 estimate. As of 9 June 2004, there were 94 cases of confirmed or possible abuse of any type, which include, theft, physical assault, sexual assault, and death.

The abuses that have occurred are not representative of policy, doctrine, or Soldier training. These abuses should be viewed as what they are - unauthorized actions taken by a few individuals, and in some cases, coupled with the failure of a few leaders to provide adequate supervision and leadership. These actions, while regrettable, are aberrations when compared to the actions of fellow Soldiers who are serving with distinction.

Executive Summary: Detainee Operations

1. Background: On 10 February 2004, the Acting Secretary of the Army directed the Department of the Army Inspector General (DAIG) to conduct an assessment of detainee operations in Afghanistan and Iraq. In order to satisfy this directive, the DAIG inspected internment, enemy prisoner of war, detention operations, and interrogation procedures in Afghanistan and Iraq. The inspection focused on the adequacy of Doctrine, Organization, Training, Materiel, Leadership, Personnel, and Facilities (DOTMLPF), standards, force structure, and policy in support of these types of operations.

This inspection was not an investigation of any specific incidents or units but rather a comprehensive review of how the Army conducts detainee operations in Afghanistan and Iraq.

The DAIG did not inspect the U.S. military corrections system or operations at the Guantanamo Bay Naval Base during this inspection. Central Intelligence Agency (CIA) and Defense HUMINT Services (DHS) operations were not inspected.

2. Purpose: Conduct a functional analysis of the Army’s internment, enemy prisoner of war, detention operations, and interrogation procedures, policies, and practices based on current Department of Defense and Army policies and doctrine. The inspection is to identify any capability and systemic shortfalls with respect to internment, enemy prisoner of war, detention operations, and interrogation procedures and recommend appropriate resolutions or changes if required.

3. Concept: Two teams conducted inspections of 26 locations in Iraq, Afghanistan, and the Continental United States (CONUS). The CONUS team consisted of seven personnel, including augmentees, and visited 10 locations while the OCONUS team consisted of nine personnel, including augmentees, and inspected 16 locations. We interviewed and surveyed over 650 leaders and Soldiers spanning the ranks from Private to Major General. We also reviewed 103 reports of allegations of abuse from Criminal Investigation Division (CID) and 22 unit investigations that covered the period from September 2002 to June 2004.

4. Objectives: The DAIG Team had four objectives for the inspection: war, detention operations, and interrogation procedures.

b. Determine the standards for Army Forces charged with internment, enemy prisoner of war, detention operations and interrogation procedures (e.g., size, equipment, standardization, and training).

c. Assess current and future organizations and structures for Army Forces responsible for internment, enemy prisoner of war, detention operations and interrogation procedures.

d. Identify and recommend any changes in policy related to internment, enemy prisoner of war, detention operations and interrogation procedures.

d. Identify and recommend any changes in policy related to internment, enemy prisoner of war, detention operations and interrogation procedures.

5. Synopsis: In the areas that we inspected, we found that the Army is accomplishing its mission both in the capture, care, and custody of detainees and in its interrogation operations. The overwhelming majority of our leaders and Soldiers understand and adhere to the requirement to treat detainees humanely and consistent with the laws of land warfare. Time and again these Soldiers, while under the stress of combat operations and prolonged insurgency operations, conduct themselves in a professional and exemplary manner.

The abuses that have occurred in both Afghanistan and Iraq are not representative of policy, doctrine, or Soldier training. These abuses were unauthorized actions taken by a few individuals, coupled with the failure of a few leaders to provide adequate monitoring, supervision, and leadership over those Soldiers. These abuses, while regrettable, are aberrations when compared to their comrades in arms who are serving with distinction.

The functional analysis of the Army’s internment, enemy prisoner of war, detention operations, and interrogation procedures, policies, and practices can be broken down into two main functions: (1) capture, care, and control of detainees, and (2) interrogation operations.

We determined that despite the demands of the current operating environment against an enemy who does not abide by the Geneva Conventions, our commanders have adjusted to the reality of the battlefield and, are effectively conducting detainee operations while ensuring the humane treatment of detainees. The significant findings regarding the capture, care, and control of detainees are:

• All interviewed and observed commanders, leaders, and Soldiers treated detainees humanely and emphasized the importance of the humane treatment of detainees.
• In the cases the DAIG reviewed, all detainee abuse occurred when one or more individuals failed to adhere to basic standards of discipline, training, or Army Values; in some cases abuse was accompanied by leadership failure at the tactical level.
• Of all facilities inspected, only Abu Ghraib was determined to be undesirable for housing detainees because it is located near an urban population and is under frequent hostile fire, placing Soldiers and detainees at risk.

We determined that the nature of the environment caused a demand for tactical human intelligence. The demands resulted in a need for more interrogators at the tactical level and better training for Military Intelligence officers. The significant findings regarding interrogation are:

• Tactical commanders and leaders adapted their tactics, techniques, and procedures, and held detainees longer than doctrinally recommended due to the demand for timely, tactical intelligence.
• Doctrine does not clearly specify the interdependent, and yet independent, roles, missions, and responsibilities of Military Police and Military Intelligence units in the establishment and operation of interrogation facilities.
• Military Intelligence units are not resourced with sufficient interrogators and interpreters, to conduct timely detainee screenings and interrogations in the current operating environment, resulting in a backlog of interrogations and the potential loss of intelligence.
• Tactical Military Intelligence Officers are not adequately trained to manage the full spectrum of the collection and analysis of human intelligence.
• Officially approved CJTF-7 and CJTF-180 policies and the early CJTF-180 practices generally met legal obligations under U.S. law, treaty obligations and policy, if executed carefully, by trained soldiers, under the full range of safeguards. The DAIG Team found that policies were not clear and contained ambiguities. The DAIG Team found implementation, training, and oversight of these policies was inconsistent; the Team concluded, however, based on a review of cases through 9 June 2004 that no confirmed instance of detainee abuse was caused by the approved policies.

We reviewed detainee operations through systems (Policy and Doctrine, Organizational Structures, Training and Education, and Leadership and Discipline) that influence how those operations are conducted, and have identified findings and recommendations in each. While these findings are not critical, the implementation of the corresponding recommendations will better enable our commanders to conduct detainee operations now and into the foreseeable future, decrease the possibility of abuse, and ensure we continue to treat detainees humanely.

The findings and observations from this inspection are separated into the following three chapters: Chapter 3 - Capture, Care, and Control of Detainees, Chapter 4 - Interrogation Operations, and Chapter 5 - Other Observations. A summary of the Capture, Care, and Control of Detainees and the Interrogation Operation findings is provided below.

Capture, Care, and Control of Detainees

Army forces are successfully conducting detainee operations to include the capture, care, and control of detainees. Commanders and leaders emphasized the importance of humane treatment of detainees. We observed that leaders and Soldiers treat detainees humanely and understand their obligation to report abuse. In those instances where detainee abuse occurred, individuals failed to adhere to basic standards of discipline, training, or Army Values; in some cases individual misconduct was accompanied by leadership failure to maintain fundamental unit discipline, failure to provide proper leader supervision of and guidance to their Soldiers, or failure to institute proper control processes.

We found through our interviews and observations conducted between 7 March 2004 and 5 April 2004 that leaders and Soldiers in Afghanistan and Iraq were determined to do what was legally and morally right for their fellow Soldiers and the detainees under their care. We found numerous examples of military professionalism, ingrained Army Values, and moral courage in both leaders and Soldiers. These leaders and Soldiers were self-disciplined and demonstrated an ability to maintain composure during times of great stress and danger. With the nature of the threat in both Afghanistan and Iraq, Soldiers are placed in extremely dangerous positions on a daily basis. They face the daily risks of being attacked by detainees, contracting communicable diseases from sick detainees, being taunted or spat upon, having urine or feces thrown upon them, and having to treat a detainee humanely who just attacked their unit or killed a fellow Soldier. Despite these challenges, the vast majority of Soldiers and other U.S. Military personnel continued to do their duty to care for detainees in a fair and humane manner.

Our review of the detainee abuse allegations attempted to identify underlying causes and contributing factors that resulted in abusive situations. We examined these from the perspective of the Policy and Doctrine, Organizational Structures, Training and Education, and Leadership and Discipline systems. We also examined them in terms of location on the battlefield and sought to determine if there was a horizontal, cross-cutting system failure that resulted in a single case of abuse or was common to all of them. Based on this inspection, we were unable to identify system failures that resulted in incidents of abuse. These incidents of abuse resulted from the failure of individuals to follow known standards of discipline and Army Values and, in some cases, the failure of a few leaders to enforce those standards of discipline. We also found that our policies, doctrine, and training are being continually adapted to address the existing operational environment regarding detainee operations. Commanders adjusted existing doctrinal procedures to accommodate the realities of the battlefield. We expect our leaders to do this and they did. The Army must continue to educate for uncertain environments and develop our leaders to adapt quickly to conditions they confront on the battlefield.

Using a data cut-off of 9 June 2004 we reviewed 103 summaries of Army CID reports of investigation and 22 unit investigation summaries conducted by the chain of command involving detainee death or allegations of abuse. These 125 reports are in various stages of completion. 31 cases have been determined that no abuse occurred; 71 cases are closed; and 54 cases are open or undetermined. Of note, the CID investigates every occurrence of a detainee death regardless of circumstances.

Recognizing that the facts and circumstances as currently known in ongoing cases may not be all-inclusive, and that additional facts and circumstances could change the categorization of a case, the Team placed each report in a category for the purposes of this inspection to understand the overall numbers and the facts currently known, and to examine for trends or systemic issues. This evaluation of allegations of abuse reports is not intended to influence commanders in the independent exercise of their responsibilities under the Uniform Code of Military Justice (UCMJ) or other administrative disciplinary actions. As an Inspector General inspection, this report does not focus on individual conduct, but on systems and policies.

This review indicates that as of 9 June 2004, 48% (45 of 94) of the alleged incidents of abuse occurred at the point of capture, where Soldiers have the least amount of control of the environment. For this inspection, the DAIG Team interpreted point of capture events as detainee operations occurring at battalion level and below, before detainees are evacuated to doctrinal division forward or central collecting points (CPs). This allowed the DAIG Team to analyze and make a determination to where and what level of possible abuse occurred. The point of capture is the location where most contact with detainees occurs under the most uncertain, dangerous, and frequently violent circumstances.

This review further indicates that as of 9 June 2004, 22% (21 of 94) of the alleged incidents of abuse occurred at Internment/Resettlement (I/R) facilities. This includes the highly publicized incident at Abu Ghraib. Those alleged abuse situations at I/R facilities are attributed to individual failure to abide by known standards and/or individual failure compounded by a leadership failure to enforce known standards, provide proper supervision, and stop potentially abusive situations from occurring. As of 9 June 2004, 20%, (19 of 94) of the alleged incidents of abuse occurred at CPs. For the remaining 10% (9 of 94) of the alleged incidents of abuse, a location could not be determined based on the CID case summaries.

The Army estimates that over 50,000 detainees have been captured or processed. While even one case of abuse is unacceptable, we conclude that given the volume of detainees and the potential for abuse in these demanding circumstances, the overwhelming majority of our Soldiers and leaders are conducting these operations with due regard for the detainees right to be treated humanely and properly.

Detainee abuse does not occur when individual Soldiers remain disciplined, follow known procedures, and understand their duty obligation to report abusive behavior. Detainee abuse does not occur when leaders of those Soldiers who deal with detainees enforce basic standards of humane treatment, provide oversight and supervision of detainee operations, and take corrective action when they see potentially abusive situations developing. Our site visits, interviews, sensing sessions, and observations indicate that the vast majority of Soldiers and leaders, particularly at the tactical level, understand their responsibility to treat detainees humanely and their duty obligation to report infractions.

We inspected I/R facilities at Bagram, Baghdad, and Camp Bucca and found only Abu Ghraib overcrowded, located near a densely populated urban area, on a dangerous main supply route, and subject to frequent hostile enemy fire from enemy mortars or rockets. The physical design of the camps within the prison was not optimal for the mission: towers were not properly placed to support overlapping fields of fire and cover blind spots; entrance/egress routes were hampered by make-shift gates; and sally ports were not used correctly. The supply of fresh water was difficult to maintain and the food quality was sub-standard. Detainees did not have access to bunkers or shelters with overhead cover to protect them from hostile enemy mortar or rocket fire from outside the walls of Abu Ghraib.

Interrogation Operations

The need for timely, tactical human intelligence is critical for successful military operations particularly in the current environment. Commanders recognized this and adapted by holding detainees longer at the point of capture and collecting points to gain and exploit intelligence. Commanders and interrogators also conducted tactical questioning to gain immediate battlefield intelligence. Commanders and leaders must set the conditions for success, and commanders, leaders, and Soldiers must adapt to the ever changing environment in order to be successful.

Of the interviewed point of capture battalion and company leaders, 61% (25 of 41) stated their units established CPs and held detainees at their locations from 12 hours up to 30 days. The primary reason units held detainees at these locations was to conduct screenings and interrogations closer to the point of capture. The result of holding detainees for longer timeframes at all locations was increased requirements in facility infrastructure, medical care, preventive medicine, trained personnel, logistics, and security. Organic unit personnel at these locations did not have the required institutional training and were therefore unaware of or unable to comply fully with Army policies in areas such as detainee processing, confinement operations, security, preventive medicine, and interrogation.

Doctrine does not clearly and distinctly address the relationship between the MP operating I/R facilities and the Military Intelligence (MI) personnel conducting intelligence exploitation at those facilities. Neither MP nor MI doctrine specifically defines the interdependent, yet independent, roles, missions, and responsibilities of the two in detainee operations. MP doctrine states MI may collocate with MP at detention sites to conduct interrogations, and coordination should be made to establish operating procedures. MP doctrine does not, however, address approved and prohibited MI procedures in an MP-operated facility. It also does not clearly establish the role of MPs in the interrogation process. Conversely, MI doctrine does not clearly explain MP internment procedures or the role of MI personnel within an internment setting. Contrary to MP doctrine, FM 34- 2, Intelligence Interrogation, 28 September 1992, implies an active role for MPs in the interrogation process: "Screeners coordinate with MP holding area guards on their role in the screening process. The guards are told where the screening will take place, how EPWs and detainees are to be brought there from the holding area, and what types of behavior on their part will facilitate the screenings." Subordination of the MP custody and control mission to the MI need for intelligence can create settings in which unsanctioned behavior, including detainee abuse, could occur. Failure of MP and MI personnel to understand each other’s specific missions and duties could undermine the effectiveness of safeguards associated with interrogation techniques and procedures.

Doctrine that addresses the establishment and operation of interrogations contains inconsistent guidance on terminology, structure, and function of these facilities. At the time of the inspection there were facilities in OPERATION ENDURING FREEDOM and OPERATION IRAQI FREEDOM that conducted intelligence exploitation as Joint Interrogation Facilities and as a Joint Interrogation and Debriefing Center. The intelligence sections of each were uniquely structured to meet mission requirements.

Shortfalls in numbers of interrogators and interpreters, and the distribution of these assets within the battlespace, hampered human intelligence (HUMINT) collection efforts. Valuable intelligence—timely, complete, clear, and accurate—may have been lost as a result. Interrogators were not available in sufficient numbers to efficiently conduct screening and interrogations of the large numbers of detainees at collecting points (CPs) and internment/resettlement (I/R) facilities, nor were there enough to man sufficient numbers of Tactical Human Intelligence Teams (THTs) for intelligence exploitation at points of capture. Interpreters, especially those Category II personnel authorized to participate in interrogations, were also in short supply. Units offset the shortage of interrogators with contract interrogators. While these contract interrogators provide a valuable service, we must ensure they are trained in military interrogation techniques and policy.

Due to the demand for immediate tactical intelligence, tactical intelligence officers were conducting interrogations of detainees without thorough training on the management of HUMINT analysis and collection techniques. They were not adequately trained to manage the full spectrum of HUMINT assets being used in the current operating environment. The need for these officers to understand the management of the full spectrum of HUMINT operations is a key for successful HUMINT exploitation in the current operating environment.

Current interrogation doctrine includes 17 interrogation approach techniques. Doctrine recognizes additional techniques may be applied. Doctrine emphasizes that every technique must be humane and be consistent with legal obligations. Commanders in both OEF and OIF adopted additional interrogation approach technique policies. Officially approved CJTF-180 and CJTF -7 generally met legal obligations under U.S. law, treaties and policy, if executed carefully, by trained soldiers, under the full range of safeguards. The DAIG Team found that some interrogators were not trained on the additional techniques in either formal school or unit training programs. Some inspected units did not have the correct command policy in effect at the time of inspection. Based on a review of CID case summaries as of 9 June 2004, the team was unable to establish any direct link between the proper use of an approved approach technique or techniques and a confirmed case of detainee abuse.

6. Conclusion: The Army's leaders and Soldiers are effectively conducting detainee operations and providing for the care and security of detainees in an intense operational environment. Based on this inspection, we were unable to identify system failures that resulted in incidents of abuse. This report offers 52 recommendations that are designed to improve the ability of the Army to accomplish the key tasks of detainee operations: keep the enemy off the battlefield in a secure and humane manner, and gain intelligence in accordance with Army standards.

Chapter 1: Background and Inspection Concept

1. Background: On 10 February 2004, the Acting Secretary of the Army directed the Department of the Army Inspector General (DAIG) to conduct an assessment of detainee operations in Afghanistan and Iraq. In order to satisfy the Acting Secretary of the Army's directive, the DAIG inspected internment, enemy prisoner of war, detention operations, and interrogation procedures in Iraq and Afghanistan. The inspection focused on the adequacy of Doctrine, Organization, Training, Materiel, Leadership, Personnel, and Facilities (DOTMLPF), standards, force structure, and policy.

2. Inspection Concept: The detailed concept for this inspection is as follows:

a. Purpose: The purpose of this inspection was to conduct a functional analysis of detainee operations based on current Department of Defense (DoD) and Army policy and doctrine.

b. Objectives:

(1) Assess the adequacy of DOTMLPF of Army Forces for internment, enemy prisoner of war, detention operations, and interrogation procedures.

(2) Determine the standards for Army Forces charged with internment, enemy prisoner of war, detention operations and interrogation procedures (e.g., size, equipment, standardization, and training).

(3) Assess current and future organizations and structures for Army Forces responsible for internment, enemy prisoner of war, detention operations and interrogation procedures.

(4) Identify and recommend any changes in policy related to internment, enemy prisoner of war, detention operations and interrogation procedures.

c. Scope: Two teams conducted inspections of 25 locations in Iraq, Afghanistan, and the Continental United States (CONUS). The CONUS team consisted of seven personnel, including augmentees, and visited seven locations while the OCONUS team consisted of nine personnel, including augmentees, and inspected 16 locations. We interviewed and surveyed over 650 leaders and Soldiers spanning the ranks from Private to Major General. We also reviewed 103 reports of allegations of abuse from Criminal Investigation Division (CID) and 22 unit investigations that cover the period of September 2002 to June 2004.

d. Focus: The inspection focused on the functional analysis of the Army's internment, enemy prisoner of war, and detention policies, practices, and procedures as the Army executes its role as the DoD Executive Agent for Enemy Prisoners of War and Detention Program. Numerous DoD Policies, Army Regulations, and Army Field Manuals provided the guiding tenets for this inspection.

e. Task Organization: Two teams from the DAIG Inspections Division, with augmentation from the Office of the Provost Marshal General (OPMG), Office of the Judge Advocate General (OTJAG), Office of the Surgeon General (OTSG), U.S. Army Maneuver Support Center (USAMANSCEN), U.S. Army Criminal Investigation Command (USACIC), U.S. Army Special Operations Command (USASOC), and the U.S. Army Intelligence Center (USAIC) conducted the inspection by traveling to 25 locations in CONUS and OCONUS. The composition of these teams was as follows:

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f. Inspection Process:

(1) Preparation Phase: Research and Training (February - March 2004)

(2) Execution Phase: On-Site Inspections (March - April 2004)

(3) Completion Phase: Final Report Preparation (April - June 2004)

g. Inspection Locations and Schedule: See Appendix C.

h. Inspection Approach: The Inspectors General (IG) for Combined Forces Land Component Command (CFLCC), Combined Joint Task Force-7 (CJTF-7), Combined Joint Task Force-180 (CJTF-180), and local IGs served as coordinating agents for all DAIG inspection activities at those locations. These IGs were telephonically and electronically notified by DAIG with the Notification Memorandum and Detailed Inspection Plan that was sent to all affected Commanders/IGs on 20 February 2004.

i. Other Reports: This report mentions the Ryder Report, Miller Report, and Taguba Investigation throughout its inspection results. These two reports and investigation deal with the following: the Ryder Report is an assessment of detention and corrections operations in Iraq; the Miller Report is a classified assessment of the Department of Defense's counterterrorism interrogation and detention operations in Iraq; and the Taguba Investigation is a classified investigation under Army Regulation 15-6 into the 800th Military Police (MP) Brigade's detention and internment operations.

j. Definitions: The DAIG used the following definitions throughout the report.

(1) The DAIG defined the term "detainee operations" as the range of actions taken by Soldiers beginning at the point of capture, the movement of detainees through division forward and central collecting points (CPs), to internment at internment/resettlement (I/R) facilities, and release. This includes the administrative and medical processing of detainees, medical treatment of detainees, sanitary conditions at I/R facilities and CPs, and interrogation procedures. The term "detainee operations" does not apply to confined U.S. Military personnel.

(2) Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, 1 October 1997, defines the term detainee as "any person captured or otherwise detained by an armed force." The DAIG uses the term as defined by AR 190-8 in this report. The term "detainee" includes enemy prisoners of war (EPWs), retained persons (RP), civilian internees (CIs), and other detainees (ODs). When making a differentiation between the different classifications of detainees, the report will specifically mention EPWs, RPs, CIs, or ODs. The report will also point out the use of non-doctrinal terms sometimes used as detainee classifications.

(3) The battlespace of OPERATION ENDURING FREEDOM (OEF) and OPERATION IRAQI FREEDOM (OIF) included an enemy that deployed asymmetrically with adaptive tactics; a battlespace in which there was not always a clear forward line of troops, massing of forces, or an identifiable rear area to which detainees could be rapidly evacuated. The battlespace of OEF and OIF was non-linear with combat and stability operations taking place simultaneously throughout the areas of operation. Combatants included both uniformed and non-uniformed state and non-state sponsored forces who fought using conventional and non-conventional methods to include terrorist actions against both military and civilian targets. Detainees were, and continue to be, more than compliant civilian internees and enemy prisoners of war. They are primarily a noncompliant hostile population that requires more intensive screening, interrogation and segregation. The Army is in a new and unique operational environment stemming from the need for immediate tactical level intelligence coupled with the significant numbers of non-traditional combatants/detainees encountered.

(4) We define a problem as systemic if it is widespread and presents a pattern. We attempted through observations, sensing sessions, interviews, site visits, surveys, and reviews of documents, other reports, and investigations to identify failures in the systems that comprise detainee operations.

Chapter 2: Inspection Methodology

The Department of the Army Inspector General (DAIG) Team developed a baseline approach to the inspection that focused on gathering information and data from five primary domains: interviews, sensing sessions, document reviews, surveys of commanders, leaders, and Soldiers, and site visits. This approach allowed the Team to glean perceptions and attitudes about detainee operations from selected individuals and populations; to assess detainee operations in doctrinal manuals, unit policies, unit Standing Operating Procedures (SOPs); and to determine compliance with Department of Defense (DoD) and Army policies. The Team visited U.S. Armed Forces-controlled internment/resettlement (I/R) facilities and division central and forward collecting points (CPs), as well as units conducting patrol missions, to gather overall trends and observations on detainee operations from point of capture to the processing conducted at U.S. Armed Forces-controlled I/R facilities.

This baseline methodology afforded the Team a standard, systematic approach to conducting an inspection at each location, which proved essential since the DAIG Team conducted split operations with two teams that traveled separately to continental United States (CONUS) and outside the continental United States (OCONUS) locations. The Team had to tailor their trips to look at units that had already returned from OPERATION ENDURING FREEDOM (OEF) and OPERATION IRAQI FREEDOM (OIF) as well as those units currently deployed.

The methodology established a three-phase plan for executing the inspection.

a. Phase 1: Preparation. This phase included travel planning, pre-deployment training, administrative requirements, a review of documents the Team requested in advance from the unit IGs, pre-inspection visits to the National Training Center (NTC) at Fort Irwin and the Joint Readiness Training Center (JRTC) at Fort Polk, and development of a detailed inspection plan.

b. Phase 2: Execution. This phase outlined the physical execution of the itinerary developed by the local IG in accordance with the Detailed Inspection Plan. Each visit began with an inbrief to the unit's senior leadership and ended with an outbrief. The DAIG Team conducted interviews, sensing sessions, and a survey of Commanders, leaders and Soldiers currently in the area of responsibility (AOR) and those who recently returned from OEF and OIF to determine detainee operations tactics, techniques, and procedures from point of capture to arrival at the CPs; inspected CPs from receipt of detainees to the transfer of detainees to U.S. Armed Forces-controlled I/R facilities; inspected U.S. Armed Forces-controlled I/R facilities and operations; and reviewed policies, plans, records, programs, Standard Operating Procedures (SOPs), and other related documents.

c. Phase 3: Completion. The DAIG Team returned to home station and conducted post-trip data analyses of the information gathered. The Team then crafted detailed trip reports of the visit that captured the critical information gleaned from the trips. These trip reports formed the basis from which the Team developed the findings outlined in the report. Additionally, team members cross-walked information and traveled to the MI and MP schools for coordination and confirmation of information used in the findings.

The following section outlines the baseline methodology in detail to include the specific requirements for interviews and sensing sessions based upon the type of unit visited.

a. Inspection Methodology. The local IG served as the coordinating agent for all DAIG inspection activities. The coordinating agent worked with his or her respective DAIG Team point of contact (POC) to develop an itinerary for a four-day inspection for CONUS units and a 30-day period for OCONUS. The coordinating agent and DAIG Team POC fine-tuned the itinerary to maximize the Team's ability to meet the inspection's baseline requirements.

b. Personnel Interviewed:

(1) OCONUS

(a) The Team conducted interviews at CFLCC, CJTF-7, CJTF-180, U.S. Armed Forces-controlled I/R facilities, and division CPs. The Team interviewed selected leaders from CFLCC/CJTF/division/brigade/battalion staffs and company level personnel. Individual interviews occurred in the interviewee's office or in a similar location free from interruptions and telephone calls. The coordinating agent scheduled these interviews to last no more than 1.5 hours. The coordinating agent also considered geographical dispersion and travel times between events. The interviews were conducted by one or two DAIG Team members with the unit interviewee.

(b) The DAIG Team conducted sensing sessions at each U.S. Armed Forces controlled I/R facility, division CPs, and at the company level, one for junior enlisted (Private through Specialist, but not including Corporals) and one for junior noncommissioned officers (Sergeant and Staff Sergeant). Units provided eight to twelve Soldiers per session. Each sensing session required a classroom or similar facility that was removed from the unit's normal work location. The area was relatively quiet and free from interruptions and telephone calls. In addition, the room needed no less than 14 chairs or desks formed in a circle or square. The coordinating agent scheduled 1.5-hour time blocks for each sensing session. The sensing sessions were conducted by two DAIG Team members with the unit Soldiers.

(c) The coordinating agent adjusted the interview schedule, in coordination with the Team, based upon the availability of personnel. The Team recognized that only full-time manning personnel might be available in Reserve Component units.

(d) The matrix below was a strawman that was finalized by the DAIG Team POC and the local IG for the OCONUS inspection.

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(2) CONUS

(a) The Team conducted interviews of division, brigade, battalion, and company level personnel. The Team interviewed selected leaders from each of these type units. Individual interviews occurred in the interviewee's office or in a similar location that was free from interruptions and telephone calls. The coordinating agent scheduled these interviews to last no more than 1.5 hours. The coordinating agent considered geographical dispersion and travel times between events. The interviews were conducted by one or two Team members with the unit interviewee.

(b) The DAIG Team conducted sensing sessions with collecting point and I/R facility guards and with Soldiers who captured personnel during OEF and OIF. Sensing sessions included one for junior enlisted (Private through Specialist, but not including Corporals) and one for junior noncommissioned officers (Sergeant and Staff Sergeant). Units provided eight to twelve Soldiers per session. Each sensing session required a classroom or similar facility that was removed from the unit's normal work location. The area was relatively quiet and free from interruptions and telephone calls. In addition, the room needed no less than 14 chairs or desks formed in a circle or square. The coordinating agent scheduled 1.5-hour time blocks for each sensing session. The sensing sessions were conducted by two Team members with the unit Soldiers.

(c) The coordinating agent adjusted the interview schedule, in coordination with the Team, based upon the availability of personnel. The Team recognized that only full-time manning personnel might be available in Reserve Component units.

(d) The matrix below was a strawman that was finalized by the DAIG Team POC and the local IG for the CONUS inspection.

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d. Administrative Support Requirements. The DAIG Team conducted this inspection with minimal disruption to ongoing unit missions. The Team required special arrangements from the field Inspectors General (IGs), including assistance with country clearances, travel in the AOR, in-country travel, sleeping arrangements, convoy security arrangements, body armor, weapons and ammunition, communications, scheduling of inbriefs and outbriefs, interviews and sensing sessions, and an appropriate work space for up to nine personnel conducting DAIG business.

e. Documents Reviewed In Advance (OCONUS Only):

(1) All inspections related to detainee operations, including command products, Inspector General products, Criminal Investigative Division (CID), legal, etc.

(2) All case histories of punishment (judicial and non-judicial) relating to detainee abuse.

(3) Past and current Rules of Engagement (ROE).

f. Documents Reviewed on Site (OCONUS Only):

(1) Unit TACSOPs relating to detainee operations (e.g., 5Ss and T, collecting point procedures, and inventorying EPW belongings).

(2) U.S. Armed Forces-controlled I/R facility SOPs.

(3) I/R BDE/BN/CO unit manning documentation.

(4) DD Form 2745 (EPW Capture Tag) log.

(5) DD Form 629 (Receipt for Prisoner or Detained Person) log.

(6) DA Form 4137 (Receipt for Evidence/Property Custody Document) log.

(7) DD Form 2708 (Receipt of Inmate/Detained Person) log.

(8) DD Form 1594 (Duty Logs).

(9) U.S. Armed Forces-controlled I/R facilities reporting system database.

(10) Facility maintenance and repair documentation.

(11) Facility security SOP.

(12) Detainee in/out-processing documentation.

g. Documents Reviewed During Inspections (CONUS Only):

(1) Unit Tactical Standing Operating Procedures (TACSOP) relating to detainee operations (e.g., 5Ss and T, collecting point procedures, and inventorying EPW belongings).

(2) U.S. Armed Forces-controlled I/R facility SOPs.

(3) I/R Brigade (BDE)/Battalion (BN)/Company (Co) unit manning documentation.

h. Inspection Itineraries.

DAIG requested each coordinating agent develop a draft itinerary that met the requirements listed in paragraph b. DAIG requested the coordinating agent include the necessary travel time between scheduled locations. The DAIG Team POC and the coordinating agent developed an itinerary that allows the DAIG Team to meet the objectives listed in Chapter 1 paragraph 2b. The DAIG Team conducted an inbrief with the senior commander/representative at each location.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 2 OF 22 (The Mikolashek Report)

Chapter 3: Capture, Care, and Control of Detainees

1. Summary of Findings: Army forces are successfully conducting detainee operations to include the capture, care, and control of detainees. Commanders and leaders emphasized the importance of humane treatment of detainees and, currently, leaders and Soldiers treat detainees humanely and understand their obligation to report abuse. In those instances where detainee abuse occurred, individuals failed to adhere to basic standards of discipline, training, or Army Values; in some cases individual misconduct was accompanied by leadership failure to maintain fundamental unit discipline, failure to provide proper leader supervision of and guidance to their Soldiers, or failure to institute proper control processes.

For the purpose of this inspection, we defined abuse as wrongful death, assault, battery, sexual assault, sexual battery, or theft. As of 9 June 2004 we had reviewed 103 summaries of Criminal Investigative Division (CID) reports of investigation and 22 unit investigation summaries conducted by the chain of command involving detainee death or alleged abuse. These 125 reports are in various stages of completion. No abuse was determined to have occurred in 31 cases; 71 cases are closed; and 54 cases are open or undetermined. Of note, the CID investigates every occurrence of a detainee death regardless of circumstances. While recognizing that any abuse incident is one too many, we conducted a review and categorization of the summary reports of the 125 investigations. Based on our review and analysis of reports and case summaries of investigations and our observations and interviews conducted throughout this inspection, we could not identify a systemic cause for the abuse incidents. The DAIG uses the term "systemic" specifically to describe a problem if it is widespread and presents a pattern. As defined by the DAIG in this report, a systemic issue may be found either horizontally across many various types of units, or vertically through many command levels or within systems. The DAIG determined that incidents where detainees were allegedly mistreated occurred as isolated events. In a few incidents, higher ranking individuals up to Lieutenant Colonel were involved; however, the chain of command took action when an allegation of detainee abuse was reported.

Abu Ghraib had problems with deteriorating infrastructure that impacted the clean, safe, and secure working environment for Soldiers and living conditions for detainees. Poor food quality and food distribution, lack of laundry capability, and inadequate personal hygiene facilities affected the detainees' living conditions. Overcrowding, frequent enemy hostile fire, and lack of in- depth force protection measures also put Soldiers and detainees at risk.

2. Findings:

a. Finding 1:


(1) Finding: All interviewed and observed commanders, leaders, and Soldiers treated detainees humanely and emphasized the importance of the humane treatment of detainees.

(2) Standard: See Appendix E.

(3) Inspection Results: The DAIG Team conducted numerous interviews and sensing sessions with leaders and Soldiers that revealed most leaders and Soldiers have treated detainees humanely and would report detainee abuse if they became aware of it.

For OPERATION ENDURING FREEDOM (OEF), Chairman Joint Chiefs of Staff (CJCS) Message dated 211933Z JAN 02, stated that Al Qaida and Taliban would be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions. Therefore, most detainees were classified as civilian internees (CIs) (sub-classified for OEF by the following non-doctrinal terms: Persons Under U.S. Control (PUC), Enemy Combatant (EC), and Low-level Enemy Combatant (LLEC)). Interviews, sensing sessions, and document reviews revealed that most Soldiers were aware of their requirement to treat detainees humanely. In most cases, the present level of treatment exceeded the Common Article 3 standard of treatment. Notwithstanding, while detainee abuse had occurred in OEF in the past, the DAIG Team observed that units currently conducting detainee operations missions treated detainees humanely.

Many noncommissioned officers (NCOs) stated very clearly that the humane treatment of detainees was paramount to the success of the mission. Another group of junior enlisted Soldiers stated that they received substantial training on detainee treatment. They went on to specifically mention that they were taught to treat detainees with dignity and respect. In another sensing session, the NCOs stated that the minimum standard for treating detainees is protection, respect, and humane treatment. Some went on to say that violations are not tolerated by the command or fellow Soldiers.

Consistent with these statements, the DAIG Team that visited Iraq and Afghanistan discovered no incidents of abuse that had not been reported through command channels; all incidents were already under investigation. The DAIG Team that visited units recently returning from Iraq did receive a total of 5 new allegations of potential abuse that occurred prior to January 2004. The DAIG Team immediately turned these over to the chain of command and Army Criminal Investigation Division (CID). There is no evidence of the cover-up of current detainee abuse by U.S. Soldiers. This is consistent with the results of the teams’ sensing sessions; all currently deployed Soldiers were aware of their responsibility to report abuse and appeared to be willing and able to report any potential abuse.

In OIF, U.S. Forces detained the full spectrum of classes of detainees, but most were classified as EPWs or CIs. Presently, CIs make up the vast majority of the U.S.-controlled detainee population. EPWs are entitled to all the protections in the Geneva Convention Relative to the Treatment of Prisoners of War (GPW), and CIs are entitled to relevant protections in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC). The GPW and GC provide detailed levels and standards of treatment for EPWs and CIs that include treatment during armed conflict and occupation. Most leaders and Soldiers treated EPWs and CIs humanely and consistent with the Geneva Conventions (GPW and GC).

The Army estimates that over 50,000 detainees have been captured or processed. While even one case of abuse is unacceptable, we conclude that given the volume of detainees and the potential for abuse in these demanding circumstances, the overwhelming majority of our Soldiers and leaders are conducting these operations with due regard for the detainees right to be treated humanely and properly.

Detainee abuse does not occur when individual Soldiers remain disciplined, follow known procedures and understand their duty obligation to report abusive behavior. Detainee abuse does not occur when leaders of those Soldiers who deal with detainees enforce basic standards of humane treatment, provide oversight and supervision of detainee operations and take corrective action when they see potentially abusive situations developing. Our site visits, interviews, sensing sessions and observations indicate that the vast majority of Soldiers and leaders, particularly at the tactical level, understand their responsibility to treat detainees humanely and their duty obligation to report infractions.

The GC and GPW require that copies of the GC be posted in the detainees' language in facilities that contain EPWs and/or CIs. Only 25% (4 of 16) facilities inspected maintained copies of the Geneva Conventions in the detainees' language. No facilities in Afghanistan complied with this Geneva requirement, while only 4 facilities in Iraq were compliant. Other specific details of treatment outlined in the GPW and GC are covered elsewhere in this report.

The DAIG Team observed that units made efforts to comply with the DoD requirement to treat the detainees consistent with the Geneva Conventions. Some of the improvements being made by units and resourceful individuals include: increased training for key noncommissioned officers (NCOs) and small unit leaders; developing standing operating procedures (SOPs); and requesting copies of the Geneva Conventions in the detainees' language for posting.

In general, the Miller Report recognized that detainees should be secured in a humane environment and that greater involvement by judge advocates was required. The DAIG Team did not observe a dedicated judge advocate for interrogation operations, but did note that the MI brigades, assigned to duty at Abu Ghraib, were each assigned at least 1 brigade judge advocate. The Ryder Report stated EPWs and CIs should receive the full protections of the Geneva Conventions unless the denial of these protections was due to specifically articulated military necessity.

The Taguba Investigation observed that many Soldiers and units upheld the Army Values. The Taguba Investigation also detailed numerous incidents where U.S. Soldiers abused detainees, which the investigation characterized as "systemic." As used in the Taguba Investigation, the term "systemic" deals with a subset of the security and interrogation operations at only one interment /resettlement facility and is not theater-wide. However, MG Taguba testified before the Senate Armed Services Committee on 11 May 04, narrowing the extent of the term "systemic" by stating that these particular abuses were individual actions not committed at the direction of the chain of command and that the resulting photos were taken with personal cameras. Additionally, the Taguba Investigation recommended detention facilities make several changes that would help ensure compliance with the Geneva Conventions. As stated above, the DAIG uses the term "systemic" specifically to describe a problem if it is widespread and presents a pattern. As defined by the DAIG in this report, a systemic issue may be found either horizontally across many various types of units, or vertically through many command levels from squad through division or higher level. Based on our review and analysis of reports and case summaries of investigations and our observations and interviews conducted throughout this inspection, we could not identify a systemic cause for the abuse incidents.

(4) Recommendation: CJTF-7 and CJTF-180 continue to emphasize compliance with the requirements regarding the humane treatment of detainees.

Recommendation: Commanders continue to stress the importance of humane treatment of detainees and continue to supervise and train Soldiers on their responsibility to treat detainees humanely and their responsibility to report abuse.

b. Finding 2:

(1) Finding: In the cases the DAIG reviewed, all detainee abuse occurred when one or more individuals failed to adhere to basic standards of discipline, training, or Army Values; in some cases abuse was accompanied by leadership failure at the tactical level.

(2) Standard: See Appendix E.

(3) Inspection Results: As of 9 June 2004, there were 125 reported cases of detainee abuse (to include death, assault, or indecent assault) that either had been, or were, under investigation.

For the purpose of this inspection, we defined abuse as wrongful death, assault, sexual assault, or theft. As of 9 June 2004 we had reviewed 103 summaries of Criminal Investigation Division (CID) reports of investigation and 22 unit investigation summaries conducted by the chain of command involving detainee death or alleged abuse. These 125 reports are in various stages of completion. No abuse was determined to have occurred in 31 cases; 71 cases are closed; and 54 cases are open or undetermined. Of note, the CID investigates every occurrence of a detainee death regardless of circumstances.

Recognizing that the facts and circumstances as currently known in ongoing cases may not be all inclusive, and that additional facts and circumstances could change the categorization of a case, the Team placed each report in a category for the purposes of this inspection to understand the overall numbers and the facts currently known, and to examine for a trend or systemic issue. This evaluation of alleged abuse reports is not intended to, nor should it, influence commanders in the independent exercise of their responsibilities under the Uniform Code of Military Justice (UCMJ) or other administrative disciplinary actions. As an Inspector General inspection, this report does not focus on individual conduct, but on systems and policies.

We separated these 125 cases into two categories:

(1) no abuse occurred

(2) confirmed or possible abuse

In the first category of no abuse occurring, we further separate the reports into deaths (to include death from natural causes and justified homicide as determined by courts martial) and other instances (to include cases where there was insufficient evidence to determine whether abuse occurred or where the leadership determined, through courts martial or investigation, that no abuse occurred). There were a total of 19 natural deaths and justified homicides, and 12 instances of insufficient evidence or determined that no abuse occurred. Deaths occurred at the following locations: 15 at I/R facilities; 1 at Central Collecting Points (CPs); 1 at Forward CPs; and 2 at the point of capture (POC) for a total of 19. Other instances where it was determined that no abuse occurred were at the following locations: 2 at I/R facilities; 1 at Central CPs; 2 at Forward CPs; 5 at the POC; and 2 at locations which could not be determined or did not fall into doctrinal categories, for a total of 12.

In the second category of confirmed or possible abuse, we further separated the reports into wrongful deaths, deaths with undetermined causes, and other alleged abuse (e.g., assault, sexual assault, or theft). There were a total of 20 deaths and 74 incidents of other alleged abuse. Deaths occurred at the following locations: 10 at I/R facilities; 0 at Central CPs; 5 at Forward CPs; and 5 at the POC, for a total of 20. Other instances of alleged abuse occurred at the following locations: 11 at I/R facilities; 3 at Central CPs; 11 at Forward CPs; 40 at the POC; and 9 at locations which could not be determined or did not fall into doctrinal categories, for a total of 74.

This review indicates that as of 9 June 2004, 48% (45 of 94) of the alleged incidents of abuse occurred at the point of capture. For this inspection, the DAIG Team interpreted point of capture events as detainee operations occurring at battalion level and below, before detainees are evacuated to doctrinal division forward or central collecting points (CPs). This allowed the DAIG Team to analyze and make a determination to where and what level of possible abuse occurred. The point of capture is the location where most contact with detainees occurs under the most uncertain, dangerous and frequently violent circumstances. During the period of April- August 2003 when units were most heavily engaged in combat operations, 56% (29 of 52) of point of capture incidents were reported. Even during this period of high intensity combat operations, Soldiers and leaders identified incidents that they believe to be abuse and the command took action when reported. Most of the allegations of abuse that occurred at the point of capture were the result of actions by a Soldier or Soldiers who failed to maintain their self discipline, integrity, and military bearing, when dealing with the recently captured detainees. There are a few incidents that clearly show criminal activity by an individual or individuals with disregard of their responsibility as a Soldier.

This review further indicates that as of 9 June 2004, 22% (21 of 94) of the alleged incidents of abuse occurred at I/R facilities. This includes the highly publicized incident at Abu Ghraib. Those alleged abuse situations at the I/R facilities are attributed to: individual failure to abide by known standards and/or individual failure compounded by a leadership failure to enforce known standards, provide proper supervision and stop potentially abusive situations from occurring.

While recognizing that any abuse incident is one too many, through a review of the summary reports of the 125 investigations and categorizing them, the DAIG did not identify a systemic cause for the abuse incidents. The DAIG uses the term "systemic" specifically to describe a problem if it is widespread and presents a pattern. As defined by the DAIG in this report, a systemic issue may be found either horizontally across many various types of units, or vertically through many command levels from squad through division or higher level. The DAIG determined that incidents where detainees were allegedly mistreated occurred as isolated events. In a few incidents, higher ranking individuals up to Lieutenant Colonel were involved; however, the chain of command took action when an allegation of detainee abuse was reported.

Recognizing that the facts and circumstances as currently known in ongoing cases may not be all inclusive, and that additional facts and circumstances could change the categorization of a case, the Team placed each report in a category for the purposes of this inspection to understand the overall numbers and the facts currently known, and to examine for a trend or systemic issue. This evaluation of alleged abuse reports is not intended to influence commanders in the independent exercise of their responsibilities under the Uniform Code of Military Justice (UCMJ) or other administrative disciplinary actions.

The DAIG Team that visited Iraq and Afghanistan found no incidents of abuse that had not already been reported through command channels; all incidents were already under investigation. The DAIG Team that visited units recently returning from Iraq did receive a total of 5 new allegations of potential abuse that occurred prior to January 2004. In each of these cases, CID and the chain of command were notified of the allegations. There is no evidence of any cover-up of current detainee abuse by U.S. Soldiers. This is consistent with the results of the teams’ sensing sessions that all currently deployed Soldiers were aware of their responsibility to report abuse and appeared to be willing and able to report it.

In studying the actual abuse investigations, the incidents may be broken down into 2 broad categories. The first category will be referred to as isolated abuse, and the second as progressive abuse. The first are those incidents that appear to be a one-time occurrence. In other words, these are incidents where individual Soldiers took inappropriate actions upon the capture of detainees or while holding or interrogating them. The second category of detainee abuse, referred to as progressive abuse because these usually develop from an isolated incident into a more progressive abuse.

There is substantial research on the behavior of guards in prisons and Enemy Prisoner of War (EPW)/Prisoner of War (POW) camps, in addition to the Department of Defense (DoD) experience of running simulated prisoner of war resistance training. Research indicates that regardless of how good the training and oversight, some inappropriate behavior will occur. (For example, one of the seminal studies of prisoner/guard behavior is Haney, C., Banks, C., & Zimbardo, P., A Study of Prisoners and Guards in a Simulated Prison, the Office of Naval Research, 1973. For a more recent review, along with significant commentary, see Philip Zimbardo, A Situationist Perspective on the Psychology of Evil: Understand How Good People are Transformed into Perpetrators, a chapter in Arthur Miller (Ed.) The social psychology of good and evil: Understanding our capacity for kindness and cruelty. New York: Guilford, 2004. Also worth reviewing are Stanley Milgram’s studies, starting with Obedience to Authority, New York: Harper & Row, 1974.) Because of this, the DoD simulated prisoner of war resistance training that prepares service members to resist exploitation, requires intensive oversight to prevent the abuse of Soldiers by other Soldiers.

Contributing factors to the first category of abuse include poor training (common in the cases the DAIG Team reviewed), poor individual discipline, novel situations (to include the stressors involved in combat operations), and a lack of control processes (specific oversight mechanisms). Commander's addressed the first category of abuse through counseling, administrative action, and UCMJ (up to and including courts-martial).

Below are 4 examples of this first category of detainee abuse from the 125 reported allegations referenced in the first paragraph of the inspection results above.

• One incident occurred at an internment/resettlement (I/R) facility where a Master Sergeant and her 3 subordinates attempted to beat several detainees as they arrived at the camp. Other Soldiers, not in her chain of command, prevented much of the potential abuse and then reported the Master Sergeant to the chain of command who took corrective action. All 4 Soldiers were administratively separated from the Army; 3 of these Soldiers also received nonjudicial punishment.
• In another incident a Specialist was threatening detainees by stating he would shoot them. A guard observed him making these threats and immediately turned the Specialist in to his chain of command. The commander took quick action, administering an Article 15, to prevent a recurrence.
• Another example occurred in an internment facility where a Specialist and a Staff Sergeant began to punish a detainee by using excessive force. Another Soldier from a different company joined them. The Platoon Sergeant discovered the incident and immediately relieved both of the Soldiers in his platoon and pressed charges against all 3. All 3 received field- grade Article 15 punishments.
• Another illustrative incident occurred when an interrogator struck a detainee on the head during questioning. The International Committee of the Red Cross, via the mayor of the detainee's compound, discovered this after the fact. Once he was made aware of the incident, the Soldier’s commander investigated and ultimately issued a field-grade Article 15. The commander then required 2 Soldiers to be present during every interrogation.

In these examples, abuse was discovered immediately by the command, and corrective actions were taken to prevent a recurrence. One comment made by a Noncommissioned officer (NCO) from a unit that did not have any abuse cases was that multiple levels of NCO oversight ensured compliance with the Rules of Engagement (ROE), and the team leaders and Platoon Sergeant maintained strict standards for all Military Police (MP). One interrogator NCO stated that in his unit there would be a number of people in the room during interrogations to ensure that Soldiers did not violate the Interrogation ROE.

The psychological research on abuse (see above) suggests that in similar situations, such as prisons, when some relatively minor abusive behavior occurs and corrective action is not taken, there is an escalation of violence. If there is uncorrected abuse and more people become involved, there is a diffusion of responsibility making it easier for individuals to commit abuse. The research further suggests that a moral disengagement occurs which allows individuals to rationalize and justify their behavior. (See Bandura, A., Moral Disengagement in the Perpetration of Inhumanities, Personality and Social Psychology Review, 1999.)

In at least 11 of the 125 incidents reviewed by the DAIG Team, immediate corrective action was not taken by the chain of command. The reasons for this leadership failure included either a lack of fundamental unit discipline, ambiguous command and control over the facility or individuals involved, ambiguous guidance from command on the treatment of detainees, no control processes in place to provide oversight and notify the command of the incident, or, in very few cases, leader complicity at the Lieutenant Colonel level and below in the actions. This led to the second category of detainee abuse, referred to as progressive abuse because these usually develop from an isolated incident into a more progressive abuse.

Here are 5 examples of this second category from the 125 reported allegations referenced in the first paragraph of the inspection results above, where actions were not taken until more generalized abuse had occurred.

• The incidents involving Tier 1A at Abu Ghraib began no later than October and continued until December 2003. The degradation of the detainees by the guard force appears to have started out with smaller, less-intensive types of abuse and humiliation, and increased to physical assault and injury. There were no formal control processes, such as a routine inspection of Tier 1A during the night hours or electronic monitoring, in place to easily identify abuse and bring it to the attention of the command. Eventually, a Soldier who knew it was wrong was made aware of the abuse and reported it to CID. Charges were referred on 20 March 2004 against 6 reserve MP Soldiers for detainee abuse, and further investigation continues.
• In a different incident that resulted in a death, 2 Warrant Officers appeared to exhibit a pattern of abusive interrogations. A detainee, who was overweight and in poor physical health, died during an interrogation. The CID investigation contained sworn statements indicating that physical beatings at this site were common during this time and alleged that the two Warrant Officers routinely slapped and beat the detainees they were questioning. There were no control processes in place to review the interrogation techniques used in this facility. There was apparently no oversight on the behavior of the interrogators, and, although many of the guard personnel were aware of the techniques being used, the abusive behavior was not reported. There was a perception among the guard personnel that this type of behavior by the interrogators was condoned by their chain of command. Both Warrant Officers received a General Officer Memorandum of Reprimand and further disposition of the case is under review.
• In another incident a platoon detained 2 individuals, later released them on a bridge, and made them jump into a river below. One of the detainees drowned. Sworn statements indicated the platoon "as a whole" had previously discussed having detainees jump off the bridge, and the planned action apparently had the support of the Platoon Sergeant. There is no evidence to support any previous incidents by this platoon, but these discussions are indicators that junior leader deficiencies at the platoon level contributed to the death of a detainee. CID continues to investigate this incident.
• There was an incident involving a Sergeant First Class (SFC) telling his subordinates to, "rough them up," referring to 2 detainees in custody. This occurred in the middle of the night without any oversight and at a division collecting point operated by an infantry unit. There are indications that this SFC had given similar guidance earlier. Several of the SFC’s subordinates actually performed most of the subsequent beating. There is no evidence that the SFC had abused detainees previously. This incident was adjudicated by both Special and Summary Courts-Martial, with the SFC receiving a reduction to Staff Sergeant (SSG) and a punitive censure. One SSG was reduced to a Specialist and received 30 days confinement; another SSG pled guilty to one specification of violation of a lawful general order and was reduced to the grade of Sergeant. Finally, a Specialist was found guilty at a summary court-martial and his punishment included forfeiture of $1092 and hard labor without confinement for 45 days.
• One final example is an incident where a Soldier had been talking extensively with others in his unit about wanting to kill an Iraqi. This Soldier later shot and killed an Iraqi detainee who was flexi-cuffed and may have tripped while walking away from the Soldier. This incident is currently under investigation.

Although elimination of all abuse is the goal of the DoD Law of War Training several factors prevent the complete elimination of detainee abuse. These include:

a. The psychological process that increases the likelihood of abusive behavior when one person has complete control over another is a major factor. This is the same process that occurs in prisons, in EPW/POW camps, and in DoD resistance training. Even in well-trained and screened populations, it is a constant threat. This threat can be minimized through individual and unit training on proper procedures and standards of behavior and by leader supervision of actual operations.

b. Poor training in the handling of detainees increases the risk of abuse. Although most personnel interviewed had some training in the Law of Land Warfare, many did not have training specific to detainee handling. It was often the case that individuals conducting interrogations were not school-trained as interrogators.

c. Ambiguous instructions concerning the handling of detainees also greatly increase the risk of abuse. Some Soldiers believed their command encouraged behavior at the harsher end of the acceptable range of behavior in the treatment of detainees. This can very quickly lead to abusive behavior, even if it is not the intent of the command. The Taguba Investigation makes clear that the 800th MP (I/R) Brigade leadership did not properly communicate to its Soldiers the requirements for the treatment of detainees. In order to mitigate the risk of abuse, commanders must give clear, unambiguous guidance, make sure that Soldiers understand the guidance, supervise Soldiers' operations, and then hold their Soldier’s accountable for meeting standards.

d. Criminal behavior among a small percentage of Soldiers.

e. Combat operations, as a new experience for many Soldiers, combined with the above, may lead to Soldiers justifying abusive behavior as a result of their exposure to danger. This leads to a moral disengagement where Soldiers do not take responsibility for their actions.

f. Poor unit discipline, which is a function of poor leader supervision, allows abusive behavior an opportunity to occur. Again, the Taguba Investigation identified a serious lack of discipline among the units involved in detainee abuse.

The last 3 of these factors can be best prevented by making sure Soldiers understand the standards of behavior expected of them, and by leaders who maintain unit and individual discipline and exercise appropriate supervision of Soldiers.

Almost all of the abuse cases studied by the DAIG Team were isolated events. The Soldiers’ chain of command, when notified of the allegation of abuse, took appropriate action and prevented further abusive behavior. The DAIG Team found that most abuse incidents were isolated events that, when discovered, were immediately corrected by commanders at battalion level and lower.

Those cases where corrective action did not occur, usually because the chain of command was not aware of the abuse, resulted in a continuation of abuse or a progression from talking about abuse to actually committing abuse. Factors that influenced this progression of abuse and responsive actions taken by units to mitigate these factors were:

a. Poor oversight and poor control mechanisms to inspect and check on Soldiers’ behavior decreased the likelihood that abuse would be discovered by command. This led to a breakdown in the command and control of Soldiers interacting with detainees. One NCOIC stated that the chain of command did not visit his location very often, and that when they began to receive enemy fire, he did not see the Commander or Command Sergeant Major (CSM). In response, over time, several units developed standing operating procedures that incorporated specific control mechanisms, such as requiring a certain number of personnel to be present during interrogations, having all Soldiers sign a document outlining acceptable behavior, and tasking independent officers to monitor all detainee operations, with the ability to observe anything, anytime, within their facility.

b. A command climate that encourages behavior at the harsher end of the acceptable range of behavior towards detainees may unintentionally, increase the likelihood of abuse. One officer interviewed stated that there is often a "do what it takes" mindset. This appeared to be more prevalent in the early days of the war in Iraq. Among other responses, the CJTF-7 Rules for Detainee Operations, published 30 November 2003, states, "Treat all persons with dignity and respect." In addition, on 12 October 2003, CJTF-7 published a memorandum stating all interrogations would be, "applied in a humane and lawful manner with sufficient oversight by trained investigators or interrogators. Interrogators and supervisory personnel will ensure uniform, careful, and safe conduct of interrogations."

c. In the few cases involving the progression to more serious abuse by Soldiers, tolerance of inappropriate behavior by any level of the chain of command, even if minor, led to an increase in the frequency and intensity of abuse. In a few cases, the perception, accurate or not, that Other Governmental Agencies (OGA) conducted interrogations using harsher methods than allowed by Army Regulation, led to a belief that higher levels of command condoned such methods. As noted in paragraph b above, CJTF-7 began to publish specific guidance that emphasized the humane treatment of detainees. At the time of the DAIG Team’s visit to the theater, leaders and Soldiers uniformly understood the need to treat detainees humanely.

It is evident there were Soldiers who knew the right thing to do and reported abuse when they discovered it. Soldiers who believed that abusive behavior was not acceptable reported almost all of the abuse incidents. Some of these Soldiers stopped other Soldiers from hurting detainees, demonstrating moral courage in the face of peer pressure. Others reported serious abuse when it involved their comrades and leaders. This finding on abuse focused on a very small percentage of Soldiers who may have committed abusive behavior, and not on the vast majority that, even under the stress of combat and poor living conditions, and presented with sometimes resistant and hostile detainees, have treated all within their care humanely.

(4) Root Cause: Detainee abuse was an individual failure to uphold Army Values and in some cases involved a breakdown in the leadership supervision of Soldiers' behavior.

(5) Recommendation: Commanders enforce the basic fundamental discipline standards of Soldiers, provide training, and immediately correct inappropriate behavior of Soldiers towards detainees to ensure the proper treatment of detainees.

Recommendation: Commanders assess the quality of leadership in units and replace those leaders who do not enforce discipline and hold Soldiers accountable.

Recommendation: TRADOC develop and implement a train-the-trainer package that strongly emphasizes leaders’ responsibilities to have adequate supervision and control processes in place to ensure the proper treatment of detainees.

Recommendation: TRADOC integrate training into all Professional Military Education that strongly emphasizes leaders’ responsibilities to have adequate supervision and control processes in place to ensure the proper treatment of detainees.

Recommendation: The G3 require pre-deployment training include a strong emphasis on leaders’ responsibilities to have adequate supervision and control processes in place to ensure proper treatment of, and prevent abuse of, detainees.

c. Finding 3:

(1) Finding: Of all facilities inspected, only Abu Ghraib was determined to be undesirable for housing detainees because it is located near an urban population and is under frequent hostile fire, placing Soldiers and detainees at risk.

(2) Standard: See Appendix E.

(3) Inspection Results: Abu Ghraib was overcrowded, located near a densely populated urban area and on a dangerous main supply route, and subject to frequent hostile enemy fire from enemy mortars or rockets. The facility was located approximately 20 miles west of Baghdad. The entire encampment of Abu Ghraib was quite large, covering 280 acres. This facility has had up to 10,000 persons interned there and was considered the most notorious landmark in all of Iraq, made so by the previous regime under Saddam Hussein.

Abu Ghraib consisted of three distinct separate facilities: the hard site prison complex, Camp Vigilant, and Camp Ganci. Except for Tier 1, the rest of the hard site prison complex (Tiers 2 through 7) was under complete control of Iraqi prison guards under supervision of the Coalition Provisional Authority. Criminals were housed there who had committed crimes against other Iraqis. Camp Vigilant was under complete U.S. Armed Forces control. It was the least populated facility of the three at Abu Ghraib, housing several hundred detainees.

The facility employs over 1500 Soldiers and civilians and there is no Post Exchange (PX) within the walls of Abu Ghraib. This was one of the major complaints from Soldiers. Routine trips for PX runs did not occur because of the danger in traveling to Camp Victory on the main supply route. Soldiers complained that they could not get necessary clothing and uniform items when needed.

On 19 March 2004, the official detainee headcount in Camps Ganci and Vigilant was 5967 detainees under U.S. control. This number frequently fluctuated because of releases, transfers, or additional captures of detainees. Including the hard site, there were 7490 detainees on this date. Only one internment/resettlement (I/R) Military Police battalion was charged with managing, operating, and maintaining security of Camps Ganci and Vigilant. By doctrine an I/R battalion should support the following ratios: up to 4,000 EPWs/CIs; 8,000 dislocated civilians; or 1,500 U.S. Armed Forces prisoners. The Taguba Investigation also addressed the problems of under-manning at Abu Ghraib.

Abu Ghraib also did not have sufficient protection measures in place to protect the detainees from hostile fire. Abu Ghraib was frequently under mortar and small arms fire. Detainees suffered casualties in the past due to enemy hostile fire. Detainees at Camps Vigilant and Ganci did not have access to protective bunkers or shelters, placing them at great risk.

Camp Ganci was overcrowded with a population of over 5000 detainees at the time of the DAIG inspection. Camp Ganci was designed and built as an Enemy Prisoner of War (EPW) camp, and the camp living environment was not conducive to a criminal or high security population. The population of the camp alone made security and control inherently difficult and dangerous. There were 8 compounds in Camp Ganci, and the capacity for each compound was 500. During the inspection, the average population was from 600 to 700 detainees per compound.

Camp Ganci's 8 compounds inside of Abu Ghraib had similar problems with the guard towers and perimeter triple-standard concertina wire that the old compounds at Camp Bucca suffered. The overcrowding and cramped conditions at Camp Ganci, and the fact that the distance between each compound was only 30 to 40 feet, compounded the safety and security concerns for Soldiers. Detainee rioting had occurred in the past. Lighting at Camp Ganci was poor, especially at compound 6, according to interviewed Soldiers. The physical design of the camps within the facility was not optimal for the mission. The towers, for example, provided limited visibility due to numerous blind spots. Towers supporting Camp Ganci were not placed reasonably well, as they should have been, with good fields of fire. Some towers faced each other, and there were some identified blind spots throughout the compounds according to interviewed Soldiers. Entrance and egress to the compounds were hampered by cumbersome, makeshift gates made of concertina wire and wood that dragged across the ground. This made rapid access very difficult. Sally ports were used primarily as gates or "slow down" barriers.

The Single Channel Ground/Air Radio System (SINCGARS) system used at Abu Ghraib, when operable, was maintained inside the compound for communication with units outside the compound and the roving patrols. Because many units were using the same frequency, crossed radio traffic was common between roving patrols, other outside units, and the Tactical Operations Center (TOC) inside the compound. The facility NCOIC at Abu Ghraib stated there was also a shortfall in radios, which hampered communications and security within the compound. In some instances, the guards in the towers had communication with the TOC, but not with the roving guards on the ground. So, in order to communicate with a tower, the roving guards would have to yell up to them. The guards would also have to yell up to the towers when they wanted to pass information to the TOC. Due to the ineffective communication systems at Abu Ghraib and Camp Bucca, Soldiers took it upon themselves to purchase handheld commercial radios to communicate within the camps. Because these radios are unsecured, they pose a communications security (COMSEC) problem; frequencies can be easily monitored by outside forces using the same commercially available radios. The commercial radios were also unable to communicate with the military issue radios.

During sensing sessions, NCOs at Abu Ghraib stated there were no standardized procedures for searching Iraqis entering the compound. The DAIG Team's findings are consistent with the Ryder Report that stated, "The lack of policy and standard operating procedures results in inconsistent application of basic security protocols. Visitation is a serious opportunity to introduce security and safety hazards."

Refuse and litter were seen within one of the Ganci compounds. It could not be determined if the trash was actually refuse that had migrated to the surface from an old landfill site on which Camp Ganci was built. There was approximately one portable latrine per 25 detainees, and there was a contract in place to clean the latrines. There was, however, a bad smell throughout the area from sewage because disinfectant chemicals were not replaced in the latrines. According to sensing sessions, there were only 12 showerheads in each Ganci compound for 600 to 700 detainees. The detainees showered every other day, but the guards ran all 600 to 700 detainees through the process in 2 hours. The lack of laundry capabilities or services for the detainees was similar to the situation at Camp Bucca. Detainees had tubs and soap, but there was no accountability on where the tubs were and how many there were. The unit submitted a contract request to start a laundry service for detainees.

The supply of fresh water was difficult to maintain at the required levels for drinking and personal hygiene for both Soldiers and detainees. According to interviews, Abu Ghraib received fresh water from a Baghdad city water main that frequently broke down. A 3-day supply (200K gallons) was required to be on-hand. The day before the DAIG Team arrived, the reserve water supply was down to 50K gallons. Rationing of fresh water was not uncommon for Soldiers and detainees according to leaders and Soldiers from interviews and sensing sessions.

Food quality for detainees was a serious issue at Abu Ghraib. Spoiled and contaminated food (rodent droppings and dirt) had been delivered by the contractor for the detainees in the past. Units at Abu Ghraib had to use unit stocks of Meals, Ready to Eat (MREs) to distribute to detainees instead. The unit was working with the contracting officer to remedy the substandard work of the contractor.

Other problems observed included problems with the existing power generators and lack of ventilation for the detainees.

There were planned and ongoing projects at Abu Ghraib. The new Entry Control Point (ECP) was recently completed. This will allow 200 visitations of detainee family members a day and will provide a stand-off of 100 meters for force protection. The project included a new parking lot. Another ongoing project was the new reception center. Besides the ECP and reception center, other projects planned include: perimeter fencing around Abu Ghraib; completion of Camp Avalanche (recently renamed Camp Redemption), a new facility with a capacity of 3000 detainees; and future plans to upgrade Camps Ganci and Vigilant. Both the Taguba Investigation and Ryder Report mentioned the need for structural improvements and renovations at various facilities. The Taguba Investigation stated the need for structural improvements, including enhancements of perimeter lighting, additional chain link fencing, staking down of all concertina wire, hard site development, and expansion of Abu Ghraib. One recommendation of the Ryder Report included renovation of all available cells at Abu Ghraib to facilitate consolidation and separation of the different categories of detainees. The Ryder Report also recommended modification of the Abu Ghraib master plan that allowed expansion and increased detainee capacity by means of renovation. All of the improvements mentioned in the Taguba Investigation and Ryder Report are needed at Abu Ghraib if U.S. Forces continue to use it as an I/R facility. However, because of its location in a densely populated urban area and the frequent hostile fire, the DAIG Team found that the facility should be phased out as an I/R facility, with Camp Bucca becoming the primary I/R facility in Iraq.

Abu Ghraib will be the central facility for the Iraqi Prison System after transition to the interim government. However, Abu Ghraib's location near an urban and hostile environment goes against doctrine for setting up I/R facilities. The area lends itself to poor and dangerous living and working conditions. In contrast, Camp Bucca in southern Iraq is isolated from local Iraqi populations, not frequently attacked, and is close to vital supply lines and logistical support (Navistar in Kuwait). Camp Bucca has room to expand if necessary and is already used as an overflow facility for Abu Ghraib. At the time of the DAIG visit, the detainee population of Camp Bucca was just over 1700. The new compounds at Camp Bucca (1 through 6) have a capacity for 4500 detainees. If the old compounds (7 through 11) are renovated in the same manner as the new compounds, Camp Bucca could reasonably expand the population capacity by several thousand if needed. Once the Camp Bucca expansion is completed and the "Iraqi on Iraqi "criminal population at Camp Ganci are segregated from other detainees, a phase out of Abu Ghraib as an I/R facility and complete turnover to the interim Iraqi government can take place.

(4) Root Cause: Units operating the Abu Ghraib facility were overwhelmed by the frequent hostile fire, the overcrowded conditions, and the deteriorating infrastructure.

(5) Recommendation: CJTF-7 expand Camp Bucca as an internment/resettlement facility in order to transfer detainees from Camps Ganci and Vigilant, and phase out U.S. Armed Forces detainee operations at Abu Ghraib completely.

_______________

* Note For the purpose of this inspection, we defined abuse as wrongful death, assault, sexual assault, and theft.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 3 OF 22 (The Mikolashek Report)

Chapter 4: Interrogation Operations

1. Summary of Findings: Commanders recognized the need for timely, tactical human intelligence and adapted to the environment by keeping detainees longer at the point of capture and collecting points to gain and exploit intelligence. Commanders and interrogators conducted tactical questioning to gain immediate battlefield intelligence. Holding detainees longer than 72 hours increased requirements for facility infrastructure, medical care, preventive medicine, trained personnel, logistics, and security.

Doctrine does not clearly and distinctly address the relationship between the Military Police (MP) operating I/R facilities and the Military Intelligence (MI) personnel conducting intelligence exploitation at those facilities. Neither MP nor MI doctrine specifically defines the distinct but interdependent roles and responsibilities of the two in detainee operations. MP doctrine states MI may collocate with MP at detention sites to conduct interrogations, and coordination should be made to establish operating procedures. MP doctrine does not, however, address approved and prohibited MI procedures in an MP-operated facility. It also does not clearly establish the role of MPs in the interrogation process. Conversely, MI doctrine does not clearly explain MP internment procedures or the role of MI personnel within an internment setting.

There is no DoD or Army policy that addresses the establishment and operation of interrogation facilities, including Joint Interrogation Facilities (JIFs) and Joint Interrogation and Debriefing Centers (JIDCs). Doctrine provided in two field manuals (FMs) dealing with military intelligence, FM 34-52 and FM 3-31, Joint Force Land Component Commander Handbook (JFLCC), 13 December 2001, contains inconsistent guidance on terminology, structure, and function of these facilities.

Shortfalls in numbers of interrogators and interpreters, and the distribution of these assets within the battlespace, hampered human intelligence (HUMINT) collection efforts. Valuable intelligence—timely, complete, clear, and accurate—may have been lost as a result. Interrogators were not available in sufficient numbers to efficiently conduct screening and interrogations of the large numbers of detainees at collecting points (CPs) and internment/resettlement (I/R) facilities, nor were there enough to man sufficient numbers of Tactical Human Intelligence Teams (THTs) for intelligence exploitation at points of capture. Interpreters, especially those Category II personnel authorized to participate in interrogations, were also in short supply.

Interviewed MI leaders and Soldiers indicated that G2s and S2s were conducting interrogations of detainees without the proper training on the management of HUMINT analysis and collection techniques. They were not adequately trained to manage the full spectrum of HUMINT assets being used in the current operating environment. The need for these officers to understand the management of HUMINT operations is critical to successful HUMINT exploitation in the current operating environment.

Army doctrine found in Field Manual (FM) 34-52, Intelligence Interrogation, 28 September 1992, lists 17 accepted interrogations approach techniques. It states that those approach techniques are not inclusive of all possible or accepted techniques. The DAIG Team reviewed interrogation approach techniques policy for both OEF and OIF and determined that CJTF-180 and CJTF-7 included additional interrogation approach techniques not found in FM 34- 52. The DAIG Team found that officially approved CJTF-7 and CJTF-180 policies and the early CJTF-180 practices generally met legal obligations under Geneva Convention Relevant to Prisoners of War (GPW), the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC), the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the U.S. Torture statute, 18 USC §§2034, 2034A, if executed carefully, by trained soldiers, under the full range of safeguards. The DAIG Team found that some interrogators may not have received formal instruction from the U.S. Army Military Intelligence Center on interrogation approach techniques not contained in FM 34-52. Additionally, the DAIG Team found that while commands published interrogation approach policy, some subordinate units were unaware of the current version of those policies. Content of unit interrogator training programs varied among units in both OEF and OIF. However, no confirmed instance involving the application of approved approach techniques resulted in an instance of detainee abuse.

2. Findings:

a. Finding 4:


(1) Finding: Tactical commanders and leaders adapted to the environment and held detainees longer than doctrinally recommended due to the demand for timely, tactical intelligence.

(2) Standard: See Appendix E.

(3) Inspection Results: In OPERATION ENDURING FREEDOM (OEF) and OPERATION IRAQI FREEDOM (OIF), company through division units held detainees longer than the doctrinal timeframes. By doctrine, companies and battalions are to evacuate detainees as quickly as possible to a division forward collecting point (CP). Interviewed point of capture battalion and company leaders stated 61% (25 of 41) of their units established CPs and held detainees at their locations from 12 hours up to 30 days. Of the geographically remote inspected companies and battalions, 3 of 3, established CPs at their locations. By doctrine, division forward CPs are located at maneuver brigades and can hold detainees for up to 12 hours before evacuating to division central CPs.

All interviewed leaders from 11 division forward CPs stated their facilities held detainees from 24 hours up to 54 days. By doctrine, division central CPs are located near the division support area (DSA) and can hold detainees for up to 24 hours before evacuating to the corps holding area (CHA) or internment/resettlement (I/R) facility. All interviewed leaders from 4 central CPs stated their facilities held detainees from 72 hours up to 45 days.

The primary reason units held detainees at these locations was to conduct screenings and interrogations closer to the point of capture. The result of holding detainees for longer timeframes at all locations was increased requirements in facility infrastructure, medical care, preventive medicine, trained personnel, logistics, and security. Organic unit personnel at these locations did not have the required institutional training and were therefore unaware of, or unable, to comply with Army policies in areas such as detainee processing, confinement operations, security, preventive medicine, and interrogation.

Current detainee doctrine is written to apply to a linear battlefield with an identifiable combat zone and rear area, and with the presumption that detainees at the point of capture will normally be enemy prisoners of war (EPWs). EPWs are to be humanely evacuated from the combat zone to internment facilities (normally located in the corps communication zone (COMMZ)). Evacuation is accomplished as quickly as possible for the safety of the EPWs and to ensure operations of the maneuver unit are not hampered. Doctrine assumes EPWs are normally captured forward in the combat zone by company and battalion-sized units. While doctrine does provide for interrogations to be conducted at forward locations, it limits the time detainees should be held at these sites.

By doctrine, EPWs are evacuated from companies and battalions to a division forward CP located in the brigade area of operations. A forward CP is normally a guarded, roped-off area (concertina or razor tape) or a secure fixed facility, with potable water, a latrine, and a trench or cover for protection from indirect fire. A division MP company commander plans for a platoon to operate the forward CP and process EPWs using the STRESS method (search, tag, report, evacuate, segregate, and safeguard). The MP company medical section provides medical support. Additional medical support can be requested by the brigade medical officer from the forward support battalion (FSB). EPWs doctrinally do not remain at a forward CP for more than 12 hours before being escorted to the division central CP.

By doctrine, the division central CP is established near the division support area (DSA). The central CP is larger than the forward CP, contains some type of tentage or uses an existing shelter/structure to protect detainees from the elements. The central CP may have multiple water and latrine sites. A division MP company operates the CP and continues to process EPWs using the STRESS method. The MP company medical section provides medical support. Units within the DSA provide support as stated in the division operations order. EPWs do not remain at a central CP for more than 24 hours before being escorted to the CHA.

By doctrine, a CHA is usually located near a base or base cluster in the corps rear area with one CHA to support each division conducting operations. Normal hold time at the CHA is 72 hours, but the CHA must be prepared to hold EPWs for extended periods until they are evacuated to an internment facility or until hostilities end. A CHA is a semi-permanent facility. The capture rate and captive categories determine the size of the CHA, and it should be divided into two or more compounds for segregation, security, and ease of control. The CHA has areas designated for EPW reception, processing, storage and accountability of detainee property, interrogation, medical facilities, showers, and protection from direct and indirect fire. A corps MP platoon or corps MP company operates a CHA and may be augmented with additional MPs. Support agreements can be arranged between MP headquarters and a base or base cluster where the CHA is located. Class I through Class IX supplies are requested through logistics channels and Class VIII through medical channels.

Doctrine does not address the unique characteristics of OIF and OEF, specifically operations in non-linear battlespaces and large numbers of detainees whose status is not readily identifiable as combatants, criminals, or innocents. In OIF and OEF, units held detainees at division CPs longer than doctrinal timeframes and established CPs at companies and battalions. Commanders held detainees at forward locations to facilitate more effective initial screenings (to determine detainees' status and disposition) and to obtain more timely intelligence than would be obtained from interrogations at I/R facilities. Interviews and sensing sessions with leaders and soldiers indicated a common perception at the unit level that once a detainee was evacuated, interrogations conducted at higher echelon facilities did not return tactical intelligence to the capturing unit. Furthermore, commanders and MI personnel perceived additional value in holding detainees at CPs where they can be segregated and intelligence is less likely to be compromised. Detainees held at CPs were also available for follow-up interrogations and clarifications of details based on the tactical exploitation of intelligence previously provided. Finally, interrogators at CPs are familiar with the unique local characteristics that enable more effective intelligence exploitation, i.e., religious affiliation, tribal affiliation, and regional politics.

Doctrine does not address how to effectively screen and interrogate large numbers of captured persons of undetermined status. Unlike EPWs, detained persons in OIF and OEF did not have a clear status upon capture. Capturing units were attempting to screen persons close to the point of capture to confer status in a timely manner. By doing so, they could quickly release innocent persons with no intelligence value who would otherwise burden the detention system, or detain combatants or persons of potential intelligence value for continued exploitation. In situations where effective screening couldn't be accomplished at the point of capture, companies and battalions established collecting points and held detainees instead of evacuating them to higher echelons. The time detainees were held at company and battalion locations varied from 12 hours up to 30 days based on the number of detainees and the availability of interrogators.

A result of holding detainees at CPs was company, battalion, brigade and divisional units were being required to meet the standards of CHAs without the organic resources (trained personnel, materials, equipment, and facilities) to do so. The DAIG Team found most personnel, especially at battalion and brigade CPs, did not have the training to perform the humanitarian, security, and administrative requirements for extended holding times. Because most personnel were not trained in detention operations they were unaware of Army doctrinal requirements, policies, and procedures that address the specific responsibilities for confinement, security, preventive medicine, and interrogation. The DAIG Team found most CP operations were conducted using standing operating procedures (SOPs) developed by previous units; internal tactics, techniques, and procedures; common sense; and basic soldier skills and knowledge.

Holding detainees for longer periods of time at CPs increases the infrastructure requirements from those needed for mobile, temporary holding areas to the more substantial demands of semi-permanent facilities. CPs have to provide increased internal and external security to physically contain the detainees. Considerations have to be made for areas designated for detainee reception, processing, storage and accountability of detainee property, interrogation, medical care, latrines, and protection from direct and indirect fire. The medical requirements for the care of detainees increase (e.g., trained personnel, supplies, and equipment), as do the requirements for preventive medicine (e.g., showers, sundry packs, pest control, and facility inspections). Units have increased requirements for logistics (e.g., Class I, Class II (shotguns, restraints, communications, and uniforms), Class III, Class V (non-lethal ammunition), and security (e.g., permanent external guard force and quick reaction force).

Detainee doctrine does not address operations in a non-linear battlespace. Doctrine was written for operations on a linear battlefield on which EPWs were to be quickly evacuated to corps holding areas or I/R facilities. Commanders in OIF and OEF were holding detainees closer to the point of capture to expedite intelligence exploitation. The result of holding detainees forward of I/R facilities was that companies, battalions, brigades and divisions were being required to meet higher standards of detainee humanitarian care when these units are not organically resourced with the trained personnel, materials or equipment to operate semipermanent facilities. The DAIG Team found that battalions, brigades or divisions operating CPs are not trained or resourced to run semi-permanent collection/holding facilities, and no units are fully compliant with Army policy. The DAIG Team also found that the inspected units were treating detainees humanely and in accordance with the provisions of the Geneva Conventions. Units continue to physically improve the facilities of the CPs and obtain external support for personnel and resources.

Although the Ryder Report cited changes are required in doctrine and organizational structure related to detention and correction operations, it did not go into specific details. The report did note the wide variance of standards and approaches at collecting points and recommended assessing the tactical feasibility of decreasing the number of collection points.

(4) Root Cause: Units did not comply with doctrine that requires the quick evacuation of detainees to internment facilities. Units held detainees at CPs closer to the point of capture for longer periods of time to conduct more effective interrogation and intelligence exploitation.

(5) Recommendation: TRADOC revise doctrine to address the criteria for establishing and operating collecting points to enable commanders to more effectively conduct intelligence exploitation in a non-linear battlespace.

b. Finding 5:

(1) Finding: Doctrine does not clearly specify the interdependent, and yet independent, roles, missions, and responsibilities of Military Police and Military Intelligence units in the establishment and operation of interrogation facilities.

(2) Standard: See Appendix E.

(3) Inspection Results: Doctrine does not provide clear guidance on the relationship between Military Police (MP), responsible for the safekeeping of detainees, and Military Intelligence (MI), responsible for intelligence collection. Neither MP nor MI doctrine clearly defines the distinct but interdependent roles, missions, and responsibilities of the two in detainee operations. MP doctrine states MI may collocate with MP at detention sites to conduct interrogations, and coordination should be made to establish operating procedures. MP doctrine does not, however, address approved and prohibited MI procedures in an MP-operated facility. It also does not clearly establish the role of MPs in the interrogation process. Conversely, MI doctrine does not clearly explain MP internment procedures or the role of MI personnel in an internment setting. Subordination of the MP custody and control mission to the MI need for intelligence can create settings in which unsanctioned behavior, including detainee abuse, could occur. Failure of MP and MI personnel to understand each other’s specific missions and duties could undermine the effectiveness of safeguards associated with interrogation techniques and procedures. Failure of MP and MI personnel to understand each other’s specific missions and duties could undermine the effectiveness of safeguards associated with interrogation techniques and procedures.

MP doctrine explicitly outlines MP roles and responsibilities in operating collecting points (CPs), corps holding areas (CHAs) and internment/resettlement (I/R) facilities. MP doctrine identifies the priorities of detainee operations as the custody and control of detainees and the security of the facility. MP doctrine states detainees may be interrogated at CPs, CHAs and I/R facilities operated by MPs to facilitate the collection of intelligence information. It highlights the need for coordination between MP and MI to establish operating procedures. MPs are responsible for passively detecting and reporting significant information. MPs can assist MI screeners by identifying captives who may have information that supports Priority Intelligence Requirements (PIRs). MPs can acquire important information through observation and insight even though they are not trained intelligence specialists. MP interaction with detainees is limited, however, to contact necessary for the management of a safe and secure living environment and for security escort functions during detainee movement. Thus, active participation by MPs in the intelligence exploitation process is not within the doctrinal scope of the MP mission.

MI doctrine clearly states MPs command and operate CPs and CHAs, but it does not address operational authority for I/R facilities. MI doctrine specifies MPs conduct detainee receipt, escort, transport, and administrative processing functions, including document handling and property disposition. MI doctrine in FM 34-52, contrary to MP doctrine in FM 3-19.1, contains a passage that implies an active role for MPs in the screening/interrogation process: "Screeners coordinate with MP holding area guards on their role in the screening process. The guards are told where the screening will take place, how EPWs and detainees are to be brought there from the holding area, and what types of behavior on their part will facilitate the screenings." The implication in FM 34-52 that MPs would have an active role in the screening process is in conflict with MP doctrine that states MPs maintain a passive role in both the screening and interrogation processes. This passage could cause confusion with MI personnel as to the role of MPs in screenings and interrogations. The Ryder Report addressed the issue of MPs maintaining a passive role in interrogations, stating that, "Military police, though adept at passive collection of intelligence within a facility, do not participate in Military Intelligence supervised interrogation sessions." The report further states that the active participation of MPs in interrogations could be a source of potential problems: "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 Ryder Report recommends establishing "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."

Additionally, two intelligence oriented field manuals, FM 34-52, Intelligence Interrogation (discussed above), and FM 3-31, Joint Force Land Component Commander Handbook (JFLCC), contain inconsistent guidance on terminology, structure, and function of interrogation facilities. Neither field manual address the relationship of MI and MP personnel within those facilities. FM 34-52 describes a Theater Interrogation Facility (TIF). FM 3-31 describes a Joint Interrogation Facility (JIF) and Joint Interrogation and Debriefing Center (JIDC). Interrogation facilities in OEF and OIF identified themselves as JIFs and JIDCs. Commanders and leaders structured the organization and command relationships within these JIFs and JIDCs to meet the unique requirements of their operating environments.

The DAIG Team determined MP and MI doctrine did not sufficiently address the interdependent roles of MP and MI personnel in detainee operations in OEF and OIF. Doctrine needs to be updated to clearly specify the roles and responsibilities of MPs in the intelligence exploitation of detainees. It should also clearly specify the roles and responsibilities of MI personnel within MP- operated internment facilities. For example, MP and MI doctrine should address and clarify: (1) command and control relationship of MP and MI personnel within internment facilities; (2) MPs’ passive or active role in the collection of intelligence; (3) interrogation techniques and the maintenance of good order within the detention facility; (4) detainee transfer procedures between MP and MI to conduct interrogations, including specific information related to the safety and well-being of the detainee; and (5) locations for conducting interrogations within I/R or other facilities.

(4) Root Cause: Current doctrine does not adequately address or prepare MP or MI units for collaboratively conducting detainee operations and provides inconsistent guidance on terminology, structure, and function of interrogation facilities.

(5) Recommendation: TRADOC develop a single document for detainee operations that identifies the interdependent and independent roles of the Military Police custody mission and the Military Intelligence interrogation mission.

Recommendation: TRADOC establish doctrine to clearly define the organizational structures, command relationships, and roles and responsibilities of personnel operating interrogation facilities.

Recommendation: The Provost Marshal General revise, and the G2 establish, policy to clearly define the organizational structures, command relationships, and roles and responsibilities of personnel operating interrogation facilities.

Recommendation: The G3 direct the incorporation of integrated Military Police and Military Intelligence detainee operations into field training exercises, home station and mobilization site training, and combat training center rotations.

c. Finding 6:

(1) Finding: Military Intelligence units are not resourced with sufficient interrogators and interpreters, to conduct timely detainee screenings and interrogations in the current operating environment, resulting in a backlog of interrogations and the potential loss of intelligence.

(2) Standard: See Appendix E.

(3) Inspection Results: Shortfalls in numbers of interrogators (Military Occupational Specialty (MOS) 97E and 351E)) and interpreters, and the distribution of these assets within the battlespace, hampered human intelligence (HUMINT) collection efforts. Valuable intelligence— timely, complete, clear, and accurate—may have been lost as a result. Interrogators were not available in sufficient numbers to efficiently conduct screening and interrogations of the large numbers of detainees at collecting points (CPs) and internment/resettlement (I/R) facilities, nor were there enough to man adequate numbers of Tactical Human Intelligence (HUMINT) Teams (THTs) for intelligence exploitation at points of capture. Interpreters, especially those Category II personnel authorized to participate in interrogations, were also in short supply. Interrogations were conducted at locations throughout the battlespace by trained military interrogators, contract interrogators, and, in some forward locations, by leaders and Soldiers with no training in military interrogation tactics, techniques, and procedures. Interrogations observed by DAIG Team members were conducted in accordance with Army policy and doctrine. Policy and doctrine clearly reinforce and fully comply with the provisions of the laws of land warfare, and all Army interrogators are trained extensively on approved and prohibited interrogation techniques.

The quantity and distribution of military interrogators were insufficient to conduct timely intelligence exploitation of non- compliant detainees in the current operational environment. 78% (18 of 23) of interviewed S2s and G2s stated the shortage of interrogators at points of capture and company and battalion CPs resulted in untrained combat leaders and soldiers conducting screenings and field interrogations. 89% (17 of 19) of interviewed military interrogators cited a shortage of interrogators, resulting in backlogs of interrogations at I/R facilities. Military interrogators at Abu Ghraib stated there were detainees that had been in custody for as long as 90 days before being interrogated for the first time.

In OEF and OIF, the total number of interrogators varied by unit and location. Each division (1ID, 1AD, 4ID, 1st CAV, 82nd ABN, and 101st ABN) deployed with an MI battalion that was resourced with interrogators. The 519th MI BN of the XVIII ABN Corps, and the 202nd MI BN, echelons above corps, deployed with interrogators. The 30th and 39th Army National Guard (ARNG) Separate Brigades were resourced with interrogators. All of the above units supplemented interrogators with counterintelligence Soldiers (MOS 97B and 351B) to increase interrogation capabilities. The 205th MI Brigade, V Corps; 504th MI Brigade, III Corps; and the 902nd MI Group had no interrogators and therefore conducted all interrogations using counterintelligence Soldiers. The number of interrogators in the above units varied from 4 in the ARNG Separate Brigades to 16 in some divisions, to approximately 60 in the 519th MI BN. Military interrogators in OIF were supplemented by 31 contract interrogators. (12 contract interrogators have re-deployed for personal reasons since the blanket purchase agreement (contract) was issued 14 August 2003). CJTF-180 was preparing to hire contract interrogators for OEF at the time of the inspection.

Because detainees have varying degrees of intelligence value, there is no doctrinal formula to determine the recommended ratio of interrogators and interpreters to detainees. All detainees require initial screening after capture to determine their status and potential intelligence value. The requirement for interrogation of each detainee is unique and based on potential intelligence yield, the characteristics of the detainee, and the information requirements of the unit. Some detainees may only require a single screening to determine their status and be released, while others will be screened, determined to be of intelligence value, and subsequently interrogated a few times, several times over many weeks, or numerous times over many months. The ratio of interrogators to detainees varied at each facility. At Abu Ghraib there were 120 interrogators for 1500 detainees determined to be of intelligence value; at Brassfield-Mora there were 2 interrogators for 50 such detainees; and at Bagram there were 12 interrogators for 192 detainees of intelligence value.

Category II Arabic, Pashtu, and Dari interpreters -- interpreters with U.S. citizenship, but no security clearances -- were also identified as shortages throughout OEF and OIF. As crucial players in every aspect of operations, skilled interpreters were in high demand. The quality of intelligence derived from an interrogation can depend greatly on the ability of the interpreter to work effectively with the interrogator. An effective interpreter must not only convey the accurate meaning of language, he/she must be able to express the implied message in the demeanor of the interrogator. To function together as a successful team requires specific, individualized training prior to employment in the field, as well as time working together to maximize their effectiveness. Category II interpreters should be deployed in sufficient numbers to support the commander's intelligence gathering requirements.

Detainee operations in a non-linear battlespace presented a unique challenge, requiring screening operations to be placed closer to points of capture. Using properly trained HUMINT soldiers to screen detainees in the immediate vicinity of the point of capture reduces the number of innocents detained, produces more timely intelligence, and increases the quality of evidence collection and documentation for use in future judicial proceedings. One senior MI officer indicated that his division only had the manpower to utilize THTs at points of capture approximately 10% of the time. Failure to position trained HUMINT Soldiers close to points of capture puts a burden on units farther up the chain of custody and delayed the collection of timely intelligence. The backlog of unscreened detainees quickly overwhelmed the internment system in OIF, where I/R facilities were unprepared to deal with such large numbers of detainees. This slowed the process of intelligence exploitation and prevented the timely release of detainees who were apprehended and later found to have no intelligence value and to be of no threat to Coalition Forces.

If performed by trained interrogators, front-line interrogations offer other advantages. Recently captured persons are less likely to resist the interrogator. They also have not yet entered the general detainee population where they can conspire with others to resist interrogation techniques. In untrained hands, however, these advantages can be lost. To satisfy the need to acquire intelligence as soon as possible following capture, some officers and noncommissioned officers (NCOs) with no training in interrogation techniques began conducting their own interrogation sessions. Inexperienced and untrained persons using unproven interrogation techniques often yield poor intelligence and can harden detainees against future questioning by trained interrogators. The potential for abuse increases when interrogations are conducted in an emotionally-charged environment by untrained personnel who are unfamiliar with the approved interrogation approach techniques. The quality of these interrogations was further eroded by the absence of Category II interpreters. Category I interpreters—local nationals without security clearances— were the only interpreters available in forward locations, and there was no way to guarantee the accuracy or trustworthiness of their work.

The Military Intelligence (MI) School has internally resourced a mobile training team (MTT) to offset the shortage of interrogators in the field. The MTT trains non-MI personnel in the skills and knowledge required to perform basic questioning techniques and operations in order to enhance ongoing HUMINT collection missions at the tactical level. Tactical questioning (TQ) is a critical element of small unit operations. Tactical Questioning (TQ) is defined as the questioning of the local population (noncombatants and enemy prisoners of war (EPWs)/detainees) for information of immediate tactical value. Through TQ, the handling of detainees, and the handling of captured documents, Soldiers serve as the commander's eyes and ears. The information that the Soldiers report as a result of TQ is passed up the chain of command and forms a vital part of planning and operations. The TQ MTT has trained approximately 4000 Soldiers as of March 2004.

Current military interrogation procedures as published in FM 34-52, Intelligence Interrogations, 28 September 1992, and taught at the U.S. Army Intelligence Center, Fort Huachuca, remain valid. Interrogation approach techniques, themselves, are addressed in Finding 9. Military interrogators receive 16.5 weeks of intensive training on interrogation procedures and techniques at the Army’s Human Intelligence Collector Course. This training includes collection priority, screening, planning and preparation, approaches, questioning, and termination of interrogations. A total of 192 hours of direct and indirect training on the laws of land warfare emphasizes compliance of all military interrogation techniques with the Geneva Conventions and Army policy. Prohibited activities are covered in detail and reinforced in interrogation operation exercises.

Interrogation approach techniques policies were issued for OEF and OIF. The CJTF-7 Commander issued initial interrogation approach techniques policy on 14 September 2003, and amended the interrogation approach techniques policy on 12 October 2003 and 13 May 2004. The CJTF-180 Commander issued approved interrogation approach techniques policy on 16 March 2004.

The DAIG Team observed 2 detainee facilities using digital video recording devices, 1 in Afghanistan and 1 in Iraq. Because interrogations are confrontational, a monitored video recording of the process can be an effective check against breaches of the laws of land warfare and Army policy. It further protects the interrogator against allegations of mistreatment by detainees and provides a permanent record of the encounter that can be reviewed to improve the accuracy of intelligence collection. All facilities conducting interrogations would benefit from routine use of video recording equipment.

In summary, the DAIG Team found the quantity and distribution of military interrogators were insufficient to conduct timely intelligence exploitation of non-compliant detainees in OEF and OIF. Military interrogators observed in OEF and OIF were performing interrogations of detainees in accordance with doctrine.

(4) Root Cause: The shortages of interrogators and interpreters at all echelons caused commanders and other leaders to use untrained personnel to conduct interrogations of detainees. Insufficient numbers of Category II interpreters, especially those with experience working with interrogators, further hampered interrogation operations.

(5) Recommendation: TRADOC and G2 ensure documentation of unit organizations meet interrogator personnel manning requirements, authorizations, and capabilities in order to provide commanders with timely intelligence.

Recommendation: The CFLCC contracting officer representative ensure enough Category II interpreters are hired to support timely intelligence exploitation of detainees.

d. Finding 7:

(1) Finding: Tactical Military Intelligence officers are not adequately trained on how to manage the full spectrum of the collection and analysis of human intelligence.

(2) Standard: See Appendix E.

(3) Inspection Results: Interviewed Military Intelligence (MI) leaders and Soldiers indicated that G2s and S2s were conducting interrogations of detainees without the proper training on the management of Human Intelligence (HUMINT) analysis and collection techniques. They were not adequately trained to manage the full spectrum of HUMINT assets being used in the current operating environment. The counterintelligence team leaders (TL) interviewed expressed a wish that all G2s and S2s were trained on how to manage the collection and analysis of HUMINT. The need for these officers to understand the management of HUMINT operations is the key for successful HUMINT exploitation in the current operating environment. Battalion commanders, company commanders, and platoon leaders were interrogating detainees at the point of capture according to counterintelligence TLs interviewed. They complained about this practice because these leaders were not properly trained in interrogation techniques and quite possibly jeopardized the intelligence gathering process to acquire timely intelligence from detainees. Counterintelligence TLs were told on several occasions by these leaders that they had the interrogations under control and did not require their Military Intelligence (MI) assistance.

Currently, MI officers only receive a general overview of HUMINT during their Professional Military Education (PME) courses. During the Military Intelligence Officer Basic Course (MIOBC), MI officers receive a 9 day Intelligence Battlefield Operating System (IBOS) block of instruction which includes a 6-hour block on: review/reinforcement of counterintelligence/human intelligence principles; counterintelligence organizations; Subversion & Espionage Directed Against U.S. Army & Deliberate Security Violations (SAEDA); and the role of the tactical human intelligence teams (THTs). Furthermore, the MIOBC students receive approximately an hour block of instruction from their Stability and Support Operations (SASO) instructor on displaced civilians/refugees on the battlefield.

MI Captain Career Course (MICCC) officers receive a one-hour block of instruction in their intelligence support to brigade operations (ISBO) on imagery intelligence (IMINT), counterintelligence/human intelligence, and signals intelligence (SIGINT). Additionally, during practical exercises the students receive 40 hours of Stability and Support Operations (SASO) training, 32 hours of threat training, and 2 hours of crime link training from their instructor. Also, during intelligence, surveillance, and reconnaissance planning the basic principles of counterintelligence/HUMINT are reinforced during practical exercises (30 minutes in length) that addresses IMINT, counterintelligence/HUMINT, and SIGINT being used on the battlefield to collect intelligence information. During the Intelligence Support Course to division, corps, and joint officers, there is one day of counterintelligence/HUMINT training. This training includes an overview, specific training, and a practical exercise for counterintelligence/HUMINT. Additionally, the 35E series (Counterintelligence Officer) course conducts counterintelligence/HUMINT training for 8 hours, and the Strategic Intelligence Officer Course conducts counterintelligence /HUMINT training for 5 hours.

Interviewed career course captains with experience in OPERATION ENDURING FREEDOM (OEF) and OPERATION IRAQI FREEDOM (OIF) from the Military Intelligence school stated their home station training on detainee operations was limited and concentrated on EPWs or compliant detainee populations. These officers stated the training they received at the MI Basic Course did not provide them with enough training to prepare them to conduct detainee or human intelligence gathering operations.

The G2, in coordination with TRADOC, has created a G2X/S2X Battle Staff Course to begin in July 2004 for MI officers. The G2X/S2X Battle Staff Course will prepare a G2X/S2X staff of a deploying Army division with the capability to synchronize, coordinate, manage and de-conflict counterintelligence and HUMINT sources within the division's area of responsibility (AOR). The G2X/S2X program of instruction (POI) will be tailored for a staff operating within a Joint or multi-national (Coalition) environment which will focus on real world missions, Armycentric, and counterintelligence/HUMINT tool-specific training. The G2X/S2X curriculum is based upon the counterintelligence/HUMINT critical tasks and incorporates J2X/G2X/S2X emerging doctrine/methodology and lessons learned. This course will be hands-on and application based. The G2X/S2X Battle Staff Course provides the critical knowledge and skills required to enable the G2X staff to successfully synchronize and monitor asset management to place sources against the combatant commander's target in support of the mission.

The G2, in coordination with the MI School, is currently revising Field Manual (FM) 34- 52, Intelligence Interrogation, 28 September 1992. Additionally, the G2 is spearheading a coordinated effort with TRADOC and the U.S. Army Military Police School to synchronize between the 3 disciplines of intelligence, surveillance, and reconnaissance, particularly in the area of detainee handling and internment/resettlement facility management.

Interviewed and sensed leaders and Soldiers stated that the Law or War training they received prior to deployment did not differentiate between the different classifications of detainees causing confusion concerning the levels of treatment. Even though this confusion existed, the vast majority of leaders and Soldiers treated detainees humanely.

TRADOC, in coordination with the Office of the Judge Advocate General, is currently determining the feasibility of increasing or adjusting Law of War training in the proponent schools to include procedures for handling civilian internees and other non- uniformed personnel on the battlefield.

(4) Root Cause: The MI School is not adequately training the management of HUMINT to tactical MI officers. The MI School has no functional training course available to teach the management of HUMINT.

(5) Recommendation: TRADOC continue the integration of the G2X/S2X Battle Staff Course for all Military Intelligence officers assigned to G2X/S2X positions.

Recommendation: TRADOC integrate additional training on the collection and analysis of HUMINT into the Military Intelligence Officer Basic Course program of instruction.

e. Finding 8:

(1) Finding: The DAIG Team found that officially approved CJTF-7 and CJTF-180 policies and the early CJTF-180 practices generally met legal obligations under U.S. law, treaty obligations and policy, if executed carefully, by trained soldiers, under the full range of safeguards. The DAIG Team found that policies were not clear and contained ambiguities. The DAIG Team found implementation, training, and oversight of these policies was inconsistent; the Team concluded, however, based on a review of cases through 9 June 2004 that no confirmed instance of detainee abuse resulted from the approved policies.

(2) Standard: See Appendix E.

(3) Inspection Results: Interrogation approach techniques policy is identified by several different titles by the different commands of OEF and OIF. For the purpose of standardization of this report those titles will be referred to collectively as interrogation approach techniques policy.

Army doctrine found in Field Manual (FM) 34-52, Intelligence Interrogation, 28 September 1992, lists 17 accepted interrogations approach techniques. It states that those approach techniques are not inclusive of all possible or accepted techniques. The DAIG Team reviewed interrogation approach techniques policy for both OEF and OIF and determined that CJTF-180 and CJTF-7 included additional interrogation approach techniques not found FM 34- 52. The DAIG Team found that officially approved CJTF-7 and CJTF-180 policies and the early CJTF-180 practices generally met legal obligations under Geneva Convention Relevant to Prisoners of War (GPW), the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC), the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the U.S. Torture statute, 18 USC §§2034, 2034A, if executed carefully, by trained soldiers, under the full range of safeguards. The DAIG Team found that some interrogators may not have received formal instruction from the U.S. Army Military Intelligence Center on interrogation approach techniques not contained in FM 34-52. Additionally, the DAIG Team found that while commands published interrogation approach policy, some subordinate units were unaware of the current version of those policies. Content of unit interrogator training programs varied among units in both OEF and OIF. However, no confirmed instance involving the application of approved approach techniques resulted in an instance of detainee abuse.

The 17 approved interrogation approach techniques listed in FM 34-52 are direct, incentive, emotional love, emotional hate, fear-up (harsh), fear-up (mild), fear-down, pride and ego-up, pride and ego-down, futility, we know all, file and dossier, establish your identity, repetition, rapid fire, silent, and change of scene. Approach techniques can be used individually or in combination as part of a cohesive, logical interrogation plan. These approach techniques are found in the current training curriculum at the Military Intelligence School. The FM states these approach techniques are "not new nor are all the possible or acceptable techniques discussed. Everything the interrogator says and does must be in concert with the GWS [Geneva Convention For the Amelioration of the Wounded and Sick in Armed Forces in the Field], GPW, GC and UCMJ [Uniform Code of Military Justice]." The FM further states, "Almost any ruse or deception is usable as long as the provisions of the GPW are not violated." Techniques considered to be physical or mental torture and coercion are expressly prohibited, including electric shock, any form of beating, mock execution, and abnormal sleep deprivation.

The FM gives commanders additional guidance in analyzing additional techniques. On page 1-9 it states: "When using interrogation techniques, certain applications of approaches and techniques may approach the line between lawful actions and unlawful actions. It may often be difficult to determine where lawful actions end and unlawful actions begin. In attempting to determine if a contemplated approach or technique would be considered unlawful, consider these two tests: Given all the surrounding facts and circumstances, would a reasonable person in the place of the person being interrogated believe that his rights, as guaranteed under both international and U.S. law, are being violated or withheld if he fails to cooperate. If your contemplated actions were perpetrated by an enemy against U.S. PWs [Prisoners of War], you would believe such actions violate international or U.S. law. If you answer yes to either of these tests, do not engage in the contemplated action. If a doubt still remains as to the legality of the proposed action, seek a legal opinion from your servicing judge advocate."

The FM lists four primary factors that must be considered when selecting interrogation approach techniques:

(1) The person under interrogation's mental or physical state,

(2) The person under interrogation's background and experience,

(3) The objective of the interrogation, and

(4) The interrogator's background and abilities.

The DAIG Team found some interrogation approach techniques approved for use at Guantanamo Bay were used in development of policies in OEF and OIF. As interrogation policy was developed for Joint Task Force (JTF) Guantanamo, the Commander, U.S. Southern Command requested additional approach techniques to be approved. A Working Group on Detainee Interrogations in the Global War on Terrorism was convened. This group was required to recommend legal and effective interrogation approach techniques for collection of strategic intelligence from detainees interned at Guantanamo Bay. The working group collected information on 39 existing or proposed interrogation tactics, techniques and procedures from the U.S. Central Command (CENTCOM) and U.S. Southern Command in a 6 March 2003 report. It recommended approval of 26 interrogation approaches.

A memorandum on 16 April 2003, entitled "Counter-Resistance Techniques" approved 26 specific techniques for use only by JTF Guantanamo. It required the use of 7 enumerated safeguards in all interrogations. The memorandum stated that the use of any additional interrogation techniques required additional approval. The instructions noted that the intent in all interrogations was to use "the least intrusive method, always applied in a humane and lawful manner with sufficient oversight by trained investigators or interrogators."

Both CJTF-180 and CJTF-7 developed interrogation policies for intelligence exploitation operations in OEF and OIF. All policies contained additional interrogation approach techniques other than those identified in FM 34-52. The DAIG Team identified this occurred for three reasons: (1) Drafters referenced the JTF Guantanamo policy memorandum as a basis for development for their policy; (2) In two instances, published policy made reference to the 8 May 1987 version of FM 34-52 which listed a technique that was later removed from the 28 September 1992 revision; and (3) Some intelligence personnel believed that additional interrogation techniques would assist in more effective intelligence exploitation of a noncompliant or hardened detainee population. Both OEF and OIF included safeguards in their policy, although they differed from each other and from the 16 April 2003 memorandum applicable to JTF Guantanamo. Reliance on the Guantanamo policy appears to contradict the terms of the memorandum itself which explicitly states it was applicable to interrogations of unlawful combatants at JTF Guantanamo and failed to take into account that different standards applied to JTF Guantanamo, CJTF-180 and CJTF-7.

The DAIG Team found that CJTF-7 issued a series of evolving policy statements, while CJTF-180 only issued one policy. The DAIG Team, however, found evidence of practices that had been in effect in Afghanistan since at least early 2003. The DAIG Team reviewed the officially approved interrogation approach technique policies for both CJTF-7 and CJTF-180, and the record of practices in use in CJTF-180 prior to adoption of a formal policy. The changes in policies and practices, over time, reflect the struggle that commanders faced in developing approach techniques policies that were both effective and complied generally with legal obligations applicable to the theater. In Iraq, in particular, the commander was faced with a group of detainees that ranged from Enemy Prisoners of War (EPW's), to security internees (SI's) to unlawful combatants. In both theaters, commanders were operating under combat conditions, facing the death and wounding of scores of U.S. soldiers, civilians and other noncombatants on a daily basis. Their decisions and decision-making process must be viewed against this backdrop.

The DAIG Team found that officially approved CJTF-7 and CJTF-180 policies and the early CJTF-180 practices generally met legal obligations under U.S. law, treaty obligations and policy, if executed carefully, by trained soldiers, under the full range of safeguards. The approved policies, however, presented significant risk if not executed in strictest compliance with their own safeguards. In this light, the caution noted in FM 34-52 (above) appears applicable, "It may often be difficult to determine where lawful actions end and unlawful actions begin." In a high-stress, high pressure combat environment, soldiers and subordinate leaders require clear, unambiguous guidance well within established parameters that they did not have in the policies we reviewed.

The DAIG Team found that the established policies were not clear and contained ambiguity. The absence of clarity could have been mitigated by additional training, detailed planning and brief-backs, detailed case-by-case legal analysis and other command and staff execution safeguards. In the absence of the safeguards, however, the commands could have embarked on high risk interrogation operations without adequate preparation or safeguards. Contributing to the ambiguity were command policies that included both approved techniques and security and safety provisions. While some security provisions provide a secondary benefit to an interrogation, it is not proper to use the security provision solely for the purpose of causing this secondary benefit in the interrogation. Both the CJTF-180 and CJTF-7 policies and the known CJTF-180 practices prior to their first published policy, imprudently mixed discussion of security provisions into interrogation techniques. This added to the possible confusion regarding whether a particular action was truly a security provision or an interrogation technique. While the language of the approved policies could be viewed as a careful attempt to draw the line between lawful and unlawful conduct, the published instructions left considerable room for misapplication, particularly under high-stress combat conditions.

Application of the additional techniques involving higher risk of violations required additional training for interrogators. Formal school training at the U.S. Army Intelligence Center and School (USAICS) for both MOS 97E, Enlisted Human Intelligence Collector, and 351E, Warrant Officer Human Intelligence Collection Technician, provides instruction on the interrogation approach techniques identified in FM 34-52. The DAIG Team identified that interrogators only received training on doctrinal approach techniques listed in FM 34-52 from the USAICS, however, some interrogators may have received training on the additional approach techniques at the unit level. Interviewed intelligence personnel stated they were also trained on the additional approaches through mobile training teams. In some organizations, the team found a comprehensive unit training program; in others, the team found no formal or standardized interrogator training program. Inadequately trained interrogators present an increased risk that the approach technique will be improperly applied. The team found no indication that a lack of training resulted in an improper application of any particular technique or techniques; however, it remains critical that units applying any of the additional interrogation approach techniques have a comprehensive training program as a risk mitigation measure for those higher risk techniques.

The DAIG Team observed that although both CJTF-180 and CJTF-7 published interrogation approach technique policies, some inspected units were unaware of the correct command policy in effect at the time of inspection. The differences noted were omission of approved approach techniques and failure to note that a particular approach technique required higher command approval. The team was unable to determine if inspected units with incorrect versions of higher headquarters policy had requested authorization to use, or had used, any of the additional techniques. The unit policies did include safeguards consistent with the higher headquarters policy. As with other sensitive changes in unit mission orders, commanders should ensure that they have an effective feedback mechanism to ensure subordinate units receive, acknowledge and comply with changes in approved approach techniques.

Interviews and sworn statements from personnel in both CJTF-180 and CJTF-7 indicated that some of the approach techniques included in their policies, but not listed in FM 34-52, were used by some interrogators. The DAIG team found no indication of the frequency or consistency with which these additional approach techniques were employed. The DAIG Team conducted a review of 125 case summaries from the Criminal Investigation Division (CID) and unit investigations available as of 9 June 2004. Based on a review of case summaries, and despite the significant shortcomings noted in the command policies and practices, the team was unable to establish any direct link between the use of an approved approach technique or techniques and a confirmed case of detainee abuse.

(4) Root Cause: Commanders perceived interrogation approach techniques found in FM 34-52 were insufficient for effective intelligence exploitation of non-compliant detainees in OEF and OIF and published high risk policies that presented a significant risk of misapplication if not trained and executed carefully. Not all interrogators were trained on all approved approach techniques.

(5) Recommendation: TRADOC, in coordination with G2 and TJAG, revise doctrine to identify interrogation approach techniques that are acceptable, effective and legal for noncompliant detainees.

Recommendation: CJTF-7 and CJTF-180 ensure that standardized policy on interrogation approach techniques are received, understood, trained and enforced by all units.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 4 OF 22 (The Mikolashek Report)

Chapter 5: Other Observations

1. Summary of Findings: We examined seven key systems (Leadership and Discipline, Policy and Doctrine, Military Intelligence/Military Police Relationship, Organizational Structures, Facilities, Resources, and Training and Education) that influence how detainees are handled throughout the detention process, including interrogations. In the course of that examination we identified a number of observations that while not critical, require attention and resolution. None of the findings contributed directly to any specific case of abuse. The recommendations accompanying the 15 following findings are designed to improve our ability to properly conduct detainee operations.

2. Findings:

a. Finding 9:


(1) Finding: Interviewed leaders and Soldiers stated the unit's morale (71%) and command climate (68%) had steadily improved due to competent leadership, caring for Soldiers by leaders, and better working and living conditions as the theater matured.

(2) Standard: See Appendix E.

(3) Inspection Results: We attempted to determine the effect of stress and morale on detainee operations and conducted a Combat/Operational Stress Survey. We interviewed or sensed more than 650 leaders and Soldiers and received 603 of the surveys back. The DAIG Team found that 71% (428 of 603) of leaders and Soldiers surveyed stated the unit's morale, (71%, 428 of 603) and command climate (68%, 410 of 603) had steadily improved in OPERATION ENDURING FREEDOM (OEF) and OPERATION IRAQI FREEDOM (OIF). The survey results found that leaders and Soldiers perceived that morale and the command climate was good. The results of the survey, interviews, and sensing sessions showed that the morale and command climate improved due to competent leadership, caring for Soldiers by leaders, and better working and living conditions as the theater matured. The DAIG Team also found that most perceptions of morale and command climate varied widely between senior leaders, junior leaders, and Soldiers. The morale and command climate perception was higher for those interviewed and surveyed leaders and Soldiers who deployed prior to November 2003 and had redeployed from OEF/OIF than those that were still in country or arrived after the first of the year when living conditions started to improve.

The morale and command climate perceptions varied depending upon the difficulty of the unit’s mission and its location. Soldiers conducting detainee operations in remote and dangerous locations complained of very poor to poor morale and command climate due to the lack of higher command involvement and the perception that their leaders did not care. These Soldiers stated that the leadership from higher commands hardly ever visited their locations, they were living in much worse conditions than other Soldiers, they suffered increased dangers, they were untrained to perform their mission, and the work schedule/lack of personnel depth caused them to "burn out."

Of the Soldiers who arrived in theater since November/December 2003 (61%, 194 of 318), expressed morale as good to excellent, while 51% (145 of 285) of Soldiers who deployed during the initial stages of OEF/OIF complained of poor morale, but also expressed that it seemed to get better with time.

Most Soldiers talked of how morale improved as living and working conditions improved. A majority of Soldiers mentioned the arrival of air conditioning, installation of Internet cafes, rest and recuperation (R&R) trips to Qatar, and environmental leave as some of the things that improved morale. Many engaged in Morale, Welfare, and Recreation (MWR) activities, such as weight lifting, basketball, softball, billiards, and ping-pong. Many enjoyed TV, hot meals, satellite phones, volleyball, and MWR bands in some locations. Soldiers were very pleased with how the leaders helped and listened to them more than they had before. The majority of Soldiers got more downtime or time off when possible. Most leaders expressed a need to continue to obtain more comfort items sooner to speed up improvements in living conditions as a measure to boost the morale.

The survey was given to every leader and Soldier that was interviewed and in sensing sessions both in theater and CONUS. The survey revealed that the majority of leaders and Soldiers agreed that unit members can depend, cooperate, and stand up for each other, which are factors of having good unit morale. In addition, leaders and Soldiers were told when they were doing a good job, were not embarrassed in front of peers, and were not assigned extra missions by leadership to look good for the chain of command, which are some indicators that there is a perception of a good command climate. Although the morale and command climate was poor under certain conditions, it steadily improved as living conditions in the theater improved over time.

(4) Recommendation: CFLCC, CJTF-7, and CJTF-180 continue to stress the importance of positive unit morale and command climate.

b. Finding 10:

(1) Finding: Detainee administration, internment, and intelligence exploitation policy and doctrine does not address detainee operations conducted in the current operating environment, which has a higher demand for human intelligence exploitation at the tactical level and the need for additional classifications of detainees.

(2) Standard: See Appendix E.

(3) Inspection Results:

POLICY

Although classified detainee operations policy has been issued to address individual situations at specific geographic locations, current published detainee operations policy in AR 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, 1 October 1997, does not address additional definitions of detainee designations and related treatment requirements. In addition to enemy prisoners of war (EPWs) in OPERATION IRAQI FREEDOM (OIF) and compliant, non- hostile civilian internees (CIs) in OPERATION ENDURING FREEDOM (OEF) and OIF, units were faced with capturing, transporting, segregating and controlling other categories of detainees, such as non-state combatants and non-compliant CIs. AR 190-8 also does not address the relationship between mission requirements for reestablishing a civilian prison system and detainee operations. Policy must address requirements for expanded employment of confinement expertise for managing detainee security, custody, and control challenges for a wider array of detainee designations. Policy must also address the confinement expert's role in standing up indigenous prison systems, enabling rapid segregation and transfer of criminal detainee populations from U.S. Forces to indigenous control.

The DAIG Team found the addition of new detainee administrative policy classifications of detainees resulted in inconsistent administrative procedures. Current doctrine, regulations, and policy are based on a linear battlefield and a largely compliant population, with the primary goal of removing individuals from the battlefield. In addition to EPWs and compliant, non-hostile CIs, units in OEF and OIF were confronted with capturing, transporting, processing, and confining other classifications of detainees, such as non-state combatants and non-compliant CIs. The nature of the environment in which we now conduct detainee operations requires a more specific classification of the detainees interned. Instead of compliant, non-hostile detainees, units are capturing and transporting non-state combatants, insurgents, criminals, and detainees who are either known or perceived security threats. Policy needs to be updated to address the management of detainees captured and detained primarily for intelligence exploitation, the potential security threat they may pose, or the pending reestablishment of indigenous prison systems.

Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, 1 October 1997, accords appropriate legal status using four detainee classifications: EPW, Retained Personnel (RP), CI, and Other Detainees (OD). In OEF and OIF, various fragmentary orders, policy memorandums, and unit standing operating procedures utilized several variations on these classifications, including Enemy Combatants, Under-privileged Enemy Combatant, Security Internee, Criminal Detainee, Person Under U.S. Forces Control (PUC), and Low Level Enemy Combatant (LLEC). In accordance with AR 190- 8, administrative and treatment requirements are based on the classification assigned to a particular detainee. For example, detainees are to be segregated in facilities according to their status. The development of classifications not correlated to one of the four terms defined in AR 190-8 resulted in confusing and ambiguous requirements for those charged with managing detainees and created the potential for inconsistent treatment. From points of capture to internment/resettlement (I/R) facilities, there are varying degrees of understanding as to which standards apply to the various classifications of detainees in OEF and OIF. Policy does not specifically address administrative responsibilities related to the timely release of detainees captured and detained primarily for intelligence exploitation and/or the potential security threat they may pose. Administrative processing of detainees by units in OEF and OIF was not standardized or fully compliant with policy and doctrine.

The time between capture and receipt of an Internment Serial Number (ISN) at an I/R facility far exceeded the time specified in policy and doctrine. Once the detainee reached an I/R facility, the required documentation received from collecting points (CPs) was often incomplete. The National Detainee Reporting Center (NDRC) did not receive all mandatory data elements, or in a timely manner, as detainee designation was often not determined until long after capture. From points of capture to corps holding areas, detainees are to be moved "as soon as practical" depending on the condition of the detainee, the threat faced in moving them, and military necessity. The non-linear nature of the battlespace and missions dependent on human intelligence made administrative processing a secondary priority to intelligence exploitation of detainees. This had additional second- and third-order effects on accountability, security, and reporting requirements for detainees. Detaining individuals primarily for intelligence collection or because of their potential security threat, though necessary, presented units with situations not addressed by current policy and doctrine.

Administrative processing is further hampered by the absence of the Branch Prisoner of War Information Center (now called the Theater Detainee Reporting Center (TDRC)), the central agency in theater required by policy to manage information on all EPW, CI and RP and their personal property. This resulted in missing data on individual detainees, poor detainee and property accountability, and the inability of the NDRC to completely and accurately report all required data elements to the DoD, the Army, and other appropriate agencies. Inadequate property accountability could also result in claims against the U.S. government for losses incurred by detainees while in U.S. custody.

According to Department of Defense Directive (DoDD) 2310.1, DoD Program for Enemy Prisoners of War (EPOW) and Other Detainees, 18 August 1994, the transfer of detainees to or from the custody and control of U.S. Forces requires the approval of the Assistant Secretary of Defense for International Security Affairs (ASD(ISA)). In OEF, oversight of detainee operations policy was transferred from ASD(ISA) to the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict (ASD(SO/LIC)) in a memorandum dated 17 January 2002, SUBJECT: Responsibility for Detainees in Association with the Global War on Terrorism. In OIF, ASD(ISA) maintained transfer authority under DoDD 2310.1 for most detainees, but ASD(SO/LIC) had authority under the 17 January 2002 memorandum for specific classifications of detainees. Release decisions were made by commanders or review boards at multiple echelons of detention in OIF, from points of capture to the Detainee Release Board (DRB) developed by CJTF-7. The DAIG Team did not find evidence of ASD(ISA) oversight of release decisions in OIF.

Complex detainee release mechanisms contributed to overcrowding of I/R facilities. Multiple reviews were required to make release recommendations prior to approval by the release authority. Non-concurrence by area commanders, intelligence organizations or law enforcement agencies resulted in retention of larger numbers of detainees. Interviews with the CJTF-7 Chief Magistrate, Appeal & Review Board members, and Release Review Board members indicated they believed up to 80% of detainees being held for security and intelligence purposes might be eligible for release upon review of their cases with the other 20% either requiring continued detention due to security reasons or continued intelligence requirements. Interviews also indicated area commanders were reluctant to concur with some release decisions out of concern that potential combatants may be re-introduced into their areas of operation. The Ryder Report referenced the overcrowded conditions and recommended holding Iraqi magistrate proceedings at individual facilities, reducing the requirement to manage many detainees centrally. Release of those individuals locally would substantially reduce the detainee population and the related resources and manpower, and would improve the capability to manage the remaining population. The remaining detainee population would be made up of only those criminals awaiting the restoration of the Iraqi prison system, those who are under active or pending interrogation, or those being held for specific security reasons.

During interviews and sensing sessions, the DAIG Team noted all Active Component and Reserve Component leaders indicated that current detainee operations policy was not consistent with the requirements of ongoing operations in OEF and OIF. Detainee operations policy must reflect requirements of the Future Force for strategic and operational versatility— conducting combat and stability operations simultaneously—while operating in a joint environment. As Army Transformation continues, detainee operations policy should be appropriate for and responsive to the requirements of non-linear battlespaces. Policy should provide specific guidance for a wider array of detainees who have significantly varying security requirements. This will reduce confusion in relation to the applicability of these requirements to various categories of detainees.

The Ryder Report points to several areas where current policy is not sufficient for detainee operations. It stated that, ". . . more detailed instructions in areas such as discipline, instruments of restraint, and treatment of prisoners awaiting trial. . ." are needed. The report suggested that the 800th MP Brigade’s challenges in adapting its organizational structure, training, and equipment resources to expand from a purely EPW operation to also managing Iraqi and third country national detainee populations can be attributed to a lack of policy guidance. The Taguba Investigation also points to a lack of sufficient policy and training on existing policy.

The DAIG Team concluded DoD-developed classifications of detainees were different from those found in AR 190-8 and led to inconsistent segregation of these groups as directed by policy. The lack of an adequate system-wide capacity for handling detainees, the lack of specific policy on adequacy of information/evidence collection, and the lack of an operating detainee release process at all echelons, along with the perceived need to conduct interrogations closer to the point of capture, caused units to retain detainees beyond doctrinal time periods and without properly segregating the various classifications of detainees. The decision by capturing units to hold and interrogate detainees also interfered with the policy requirements for accountability of detainees and their property within the system, leading to substantial delays in determining an individual's status and his/her subsequent disposition. Policy must address the appropriate, safe, secure, and humane custody of detainees, the specialized confinement skills required in a high-risk detainee I/R setting, and the need for timely intelligence exploitation of detainees in a non-linear battlespace. Lack of a TDRC contributed to units' failure to administratively process detainees in accordance with all regulations and policy, and the loss of theater-wide detainee and property accountability. Incomplete documentation and a cumbersome review process caused detainees to be held for extended periods of time and contributed to the overcrowding of I/R facilities.

DOCTRINE

Current doctrine was designed to quickly evacuate compliant, non-hostile enemy prisoners of war (EPWs) and CIs from point of capture to I/R facilities. It does not envision the demands of gaining immediate, tactical human intelligence, hence the requirement to detain and interrogate at lower levels. The nature of OEF and OIF battlespaces, coupled with the urgent need for human intelligence (HUMINT), compelled many units to adapt their tactics, techniques, and procedures (TTPs) for conducting detainee operations. While the necessary basic skill sets and organizational responsibilities contained in current detainee operations doctrine remain applicable, the procedural timelines for detainee processing and movement from the point of capture to the I/R facilities do not consider current operational needs. Also the unit task organizations for detainee processing and movement are not properly resourced to meet many of the challenges faced in OEF and OIF.

During interviews and sensing sessions, the DAIG Team noted leaders and Soldiers indicated current detainee operations doctrine was not consistent with the requirements of ongoing operations. According to current doctrine, the swift flow of detainees to the rear is critical in getting them to trained interrogators for intelligence exploitation, and to secure them in I/R facilities designed and operated for long-term internment. Under present doctrine, combat units must rely on support elements from other units to perform many mission-related tasks (e.g., MPs to provide escort and guard functions, and Tactical Human Intelligence (HUMINT) Teams (THTs) to screen detainees at points of capture and forward collecting points (CPs)). While current doctrine is meant to relieve combat formations of the significant manpower and logistical requirements for managing detainees before they have a negative impact on combat effectiveness, it has failed to do so in OEF and OIF. Current doctrine does not address a nonlinear battlespace where units at division level and below hold detainees for extended periods of time to provide commanders with intelligence for the conduct of effective tactical operations. Traditional task organizations are not properly resourced to meet the needs of this new operating paradigm.

Standing operating procedures (SOPs) for CPs and I/R facilities that were drafted by units prior to deployment (and in accordance with current doctrine) were found early on to be outdated based on the current operating environment for OEF and OIF. Soldiers were required to perform effectively in a variety of missions across a spectrum of operations. Units quickly found themselves taking on roles in detainee operations which were unanticipated. For example, the need for timely intelligence compelled officers and Noncommissioned officers (NCOs) in combat units to conduct tactical questioning even though none had been trained in proper interrogation TTPs. Manpower shortages at CPs and I/R facilities were satisfied by using in lieu of (ILO) units; most received little or no training in detainee operations.

The limitations of current doctrine meant that mission, enemy, terrain and weather, time, troops available, and civilian (METT-TC) considerations often drove the design and operations of division CPs and battalion and company CPs. This had negative second- and third-order effects on the accountability, intelligence exploitation, security, and safeguarding of detainees. Instead of capturing and rapidly transporting detainees to doctrinal CPs, battalions and companies were holding detainees for up to 30 days without the training, materiel, or infrastructure for doing so. The desire for timely intelligence, transportation and security concerns, and delays in administrative processing caused units at all echelons to retain detainees for periods of time that exceeded those recommended by doctrine. While adapting and operating outside of established doctrine is necessary and desirable, especially when current doctrine fails to meet the needs of ongoing operations, doing so carries with it a requirement to ensure that mission effectiveness is not hampered while ensuring safeguards are in place to prevent unsanctioned activities and meet other established requirements.

The DAIG Team observed and determined through interviews and sensing sessions that capture information was often incomplete when detainees were processed at detention locations. Capturing units lacked knowledge of procedures for information and evidence collection, critical for the accurate disposition of detainees. This was particularly apparent as OIF 2 units began deploying into theater and new commanders were faced with making release decisions based on insufficient information and documentation. The lack of required information and specificity resulted in an administrative processing backlog at all echelons of internment. CPs and I/R facilities now require capturing units to have complete documentation prior to the transfer of a detainee into their custody.

Current interrogation doctrine for intelligence preparation of the battlefield and the composition and structure of interrogation assets does not adequately cover the current operational environment. Field Manual (FM) 34-52, Intelligence Interrogation, 28 September 1992, describes military interrogation approaches that remain valid, but the FM may not include all acceptable and effective techniques. Army interrogators receive 16.5 weeks of intensive training on interrogation procedures and techniques at the Human Intelligence Collection Course. This training includes collection priority, screening, planning and preparation, approaches, questioning, and termination of the interrogation. Specific instruction on the laws of land warfare emphasizes compliance of all Army interrogation TTPs with the Geneva Conventions and Army policy. All Army interrogators interviewed in OEF and OIF stated they were performing interrogations of detainees in accordance with policy and doctrine.

The Ryder Report and Taguba Investigation indicated deficiencies in detainee operations doctrine. The Ryder Report noted significant variances from doctrine and highlighted the need for changes in current doctrine to address the "significant paradigm shift" in detainee operations. The report, however, does not provide information on specific instances where doctrine needs to be revised. (The report did state, "the team will forward suggested doctrinal and organizational changes to the appropriate proponent schools for review and action.") The Taguba Investigation of the 800th MP Brigade found, "basic Army doctrine was not widely referenced or utilized to develop the accountability practices throughout the 800th MP Brigade's subordinate units." Procedures were "made up," with "reliance on, and guidance from, junior members of the unit who had civilian corrections experience." The relevance of current doctrine to present and future operations was beyond the scope of the Taguba Investigation. The DAIG Team found the statements made in these earlier reports to be consistent with the results of this inspection.

Findings from interviews, sensing sessions, and direct observations of AC and RC units consistently indicated that current doctrine fell short in preparing Soldiers to conduct detainee operations in the fluid and dynamic environment of OEF and OIF. Detainee operations doctrine needs to fulfill the requirement of the Future Force for strategic versatility—conducting combat and stability operations simultaneously—while operating in a joint environment with relative independence and at a high operational tempo. As Army Transformation continues, detainee operations doctrine needs to be appropriate for, and responsive to, the requirements of asymmetric battlespaces, the role of non-State belligerents, and modular force structures.

(4) Root Cause: Current doctrine and policy does not provide adequate guidance for detainee operations in OEF and OIF.

(5) Recommendation: TRADOC revise doctrine for the administrative processing of detainees to improve accountability, movement, and disposition in a non-linear battlespace. And further examine processes for capturing and validating lessons learned in order to rapidly modify doctrine and incorporate into training application for Soldiers and units.

Recommendation: The Provost Marshal General revise policy for the administrative processing of detainees to improve accountability, movement, and disposition in a non-linear battlespace.

Recommendation: The Provost Marshal General, in coordination with the G2, update detainee policy to specifically address the administration, internment/resettlement, and intelligence exploitation in a non-linear battlespace, enabling commanders to better manage resources, ensure safe and secure custodial environments, and improve intelligence gathering.

c. Finding 11:

(1) Finding: Shortfalls in both the Military Police and Military Intelligence organizational structures resulted in the tactical unit commanders adjusting their tactics, techniques, and procedures to conduct detainee operations.

(2) Standard: See Appendix E.

(3) Inspection Results:

DOCTRINE

Doctrine indicates that Military Police (MP) units accept detainees from capturing units as far forward and as rapidly as possible. MPs operate divisional forward collecting points (CPs), divisional central CPs, and corps holding areas (CHA). MP units operating CPs and CHAs have the responsibilities to sustain, safeguard and ensure sick and wounded detainees receive medical treatment.

A platoon from the division MP company operates the forward CPs and should hold detainees for no more than 12 hours before transporting detainees to the central CP. The central CP should not hold detainees for more than 24 hours before transporting detainees to the CHA. Units will protect the detainees from enemy attacks and provide medical support, food, potable water, latrine facilities, and shelter. Detainee property is tagged with part C of Department of Defense (DD) Form 2745, Enemy Prisoner of War Capture Tag, and given to the escort guards. The MP leader will request transportation through logistic channels to transfer detainees from the forward CP to the central CP with the same procedures to transport the detainees to the CHA.

The CHA is operated by a platoon or company from a corps MP battalion and should not keep detainees for more than 72 hours. The decision to hold detainees longer is based on mission, enemy, terrain, time, troops available and civilian (METT-TC) considerations and the availability of forces. An MP platoon can guard 500 detainees, while an MP company can guard 2,000 detainees. As the population of the CHA increases, detainee evacuations to the internment/resettlement (I/R) facility also increase. Logistical requirements for food, water, medical care and sanitation must be considered. Locations for use by Military Intelligence (MI) interrogators need to be identified. The MP leader will request transportation through logistic channels to transport detainees from the CHA to the I/R facility.

The I/R facilities provide appropriate segregation, accountability, security, and support of detainees. An I/R facility is semi- permanent and normally consists of one to eight compounds, with each compound capable of interning 500 detainees. The facility is operated by the HHC, MP battalion (I/R) (EPW/CI/DC) which provides command and control, administrative, and logistics functions to operate the facility. The battalion is capable of interning and supporting 4,000 enemy prisoner of war (EPWs) and civilian internees (CIs) or 8,000 dislocated civilians (DCs). An MP company (Guard) is assigned to provide guards for EPWs, CIs, and DCs, at the I/R facility. The company is capable of securing 2,000 EPWs, 2,000 CIs, or 4,000 DCs. The MP company (Escort Guard) provides supervision and security for evacuating and moving EPWs, CIs, DCs and other detained persons via vehicles, trains, aircraft, and road marches. The minimal security requirements for the facility include clear zones, guard towers, lights, sally ports, communications, and patrol roads. The MP and support personnel accepting detainees into the facility will search the detainee, conduct medical screening, perform administrative accountability, photograph and fingerprint as needed, account for personal property, and review records.

Doctrinally the first location an interrogation could take place is at the brigade. The interrogation teams are temporarily attached to the brigade from the division MI battalion interrogation section. The teams at the brigade level are strictly tactical and deal with information of immediate value. Interrogators are not usually assigned below the brigade level unless the combat situation requires limited tactical interrogation at battalion or company. Interrogations below brigade level are brief and concerned with information bearing directly on the combat mission of the capturing unit. This information is immediate tactical intelligence that is necessary for mission accomplishment and permits rapid reaction based on the information obtained.

In addition, MP personnel and MI interrogator teams at CPs and CHAs need to work closely together to determine which detainees, their personal belongings, and completed paperwork will offer intelligence information that would be useful to the command. The MI interrogators must support operations from brigade to theater level. Interrogators have to be highly mobile, and have communication equipment to report timely intelligence information to the supported commander.

Units conducting detainee operations in OPERATION ENDURING FREEDOM (OEF) and OPERATION IRAQI FREEDOM (OIF) adapted tactics, techniques, and procedures to make up for organizational shortfalls and to fill the void in doctrine resulting from the current operational environment.

OPERATION ENDURING FREEDOM

In OEF, units at point of capture processed their detainees at a non-doctrinal company CPs that held the detainees for up to 72 hours before releasing them or transporting them to higher headquarters. Detainees were held longer than 72 hours if required for intelligence purposes. Battalion Tactical Human Intelligence (HUMINT) Teams (THTs) sent to the company were extremely successful in gathering intelligence information from the detainees. If the THT was not available, the commander determined whether to detain or release a detainee after screening. MP personnel were not assigned to these company CPs, so the forward units had to provide their own guard force for the detainees. This additional duty took Soldiers away from performing their combat mission, which decreased the combat effectiveness of the unit. To process a detainee into the CP, the unit had to complete all required paperwork. The unit inventoried and tagged detainee personal property which would accompany the detainee when he was repatriated or transferred to another location. The unit also tracked detainees with a Department of the Army (DA) Form 2708, Receipt of Inmate or Detained Person, when they were transferred to another location. The company CP provided detainees with food, water, shelter, and limited medical treatment.

The battalion CP held anywhere from 11 to 24 detainees for a period of 2 to 30 days. The battalions operating the CPs received sufficient information from the point of capture units to aid in their processing of the detainees. The interrogators examined all evidence before they began interrogating a detainee. When there was no THT present, commanders screened detainees for their intelligence value to determine if they should be released or transferred to the I/R facility. The determination to retain or release detainees at lower levels helped to ease the backlog of detainees requiring screening and questioning at higher locations. There were no MP personnel assigned to the battalions to support the battalion CPs. The battalions drew guards from their subordinate companies to act as a guard force for the detainees. This requirement to guard detainees diverted Soldiers from performing their combat mission and decreased the combat effectiveness of the unit. The unit leadership supervised its Soldiers to ensure detainees were protected, accounted for, and safeguarded. The unit provided detainees with; food, bottled water, shelter, and limited medical treatment. The unit evacuated detainees by air or tactical vehicles to higher level facilities.

The division central CP at Kandahar was operated by platoons from an MP Company. The MP personnel in-processed the detainees, inventoried their personal property on a DA Form 4137, Evidence/Property Custody Document, placed their items in bags (if they would fit) or large suitcases and other items. A copy of the inventory sheet was placed inside with the property (with the detainee internally generated identification number) and stored the property in a secure area. The detainees were physically searched, checked for injuries, digitally photographed, and if sick or wounded, evacuated to a medical treatment facility (MTF) for treatment. The central CP held anywhere from 23 to 40 detainees. Most detainees were repatriated or transferred within 72 hours of arrival at this location, however detainees could be held longer for intelligence exploitation. MP guards escorted detainees to the interrogators and remained in close proximity during the interrogation. Since the detainees did not leave the facility, there was no custodial transfer of detainees to interrogators. When an interrogator requested to screen detainee personal effects prior to the interrogation, the MP guard would have the interrogator sign for the items prior to releasing them. The unit provided detainees with food, bottled water, shelter, blanket, Qur-an, medical treatment and showers for personal hygiene. CP personnel transported detainees by air to the I/R facility.

Detainees were held at the Bagram I/R facility for an unspecified length of time. The facility could house up to 275 detainees and, at the time of the inspection, housed 175. The I/R facility was operated by an MP battalion. The MP battalion did not deploy with two of its organic MP companies, but was augmented with two Reserve Component (RC) MP companies, one company was an MP company (combat support) and the other was an MP company (guard), to aid them with the internment duties. Upon a detainee's arrival, the MPs in-processed the detainee's personal effects and accounted for the items on a DA Form 4137. The evidence custodian signed for the property and stored it in a secure area. The detainee was photographed, received a medical screening including height and weight, was issued a jumpsuit, showered and shaved, and then was photographed again. The MP guards escorted the detainee to the interrogators and remained in close proximity to the interrogation. Since the detainee did not leave the facility there was no custodial transfer of the detainee to the interrogator. If the detainee was transferred outside the facility, a DD Form 2708, Receipt of Inmate or Detained Person, was completed and signed to maintain accountability. Upon return the detainee received a complete medical exam to check for injuries. When an interrogator requested to screen detainee's personal effects prior to the interrogation, the MP guard would have the interrogator sign for the items. The interrogators used the same screening sites they use for interrogations to review personal effects. One MI Officer felt there was a doctrinal shortcoming pertaining to interrogation operations. He felt there should be a standing operating procedure (SOP) for the operations of a joint interrogation facility (JIF) that is standard Army wide. MP personnel provided the detainees with food, bottled water and access to medical treatment. The detainees slept in cells, received blankets and had access to latrines and showers.

OPERATION IRAQI FREEDOM

Based on interviews and sensing sessions with leaders and Soldiers in Continental United States (CONUS)/Outside CONUS (OCONUS) the DAIG Team found 50% (13 of 26) of interviewed point of capture company leaders stated that their companies had established and operated non-doctrinal company CPs in OIF. These companies detained individuals during their cordon and search operations and raids. The remaining 50% of interviewed point of capture company leaders transported their detainees to the next higher collecting point. The companies held anywhere from 3 to 15 detainees for a period of 12 hours up to 3 days. This was longer than the recommended doctrinal standard of 12 hours. Doctrine also has the MP operating CPs to temporarily secure EPWs /CIs until they can be evacuated to the next higher echelon's holding area. MP personnel are not doctrinally assigned at the company level to collect or guard detainees. The capturing unit had the responsibility to guard their detainees for extended periods of time, which took the Soldiers away from performing their combat mission and adversely impacted the combat effectiveness of the unit. The company CPs were established to interrogate detainees closer to the point of capture prior to evacuating the detainee to the next higher level CP. The unit completed the required detainee paperwork at this location. The required paperwork included 2 sworn statements, the Coalition Provisional Authority Forces Apprehension Form, and DD Form 2745, Enemy Prisoner of War Capture Tag. The unit had to complete this process in order to evacuate the detainees to the next higher location. Units inventoried and bagged the detainees' personal property as part of the paperwork process. Of the interviewed company leaders that had established the company CPs, 62% (16 of 26) said they would interrogate the detainee to gather information while holding them at the company CP. This tactical questioning (TQ) was more than just asking the detainee basic questions (name, age, place of residence, etc); it was an attempt to gather intelligence that might aid the unit in locating other potential targets. In a few cases, when available, units had THTs to conduct initial intelligence screening of detainees. Another 15% (4 of 26) of interviewed company leaders that had established the company CPs, asked detainees basic questions to complete the paperwork. The remaining 23% (6 of 26) of interviewed company leaders that had established the company CPs said they did not conduct interrogations or question detainees at all. The unit leadership did not have the proper training in interrogation procedures and techniques to conduct effective interrogations. Without training, individual conducting interrogation could possibly jeopardize vital intelligence information instead of quickly processing and transporting detainees to an area with trained interrogators. The company CP provided detainees with; food, bottled water, limited shelter and limited medical treatment. The unit transported detainees to the battalion CP during re-supply assets operations for unit security.

Of the interviewed combat arms brigade/battalion leaders who performed cordon and search missions and raids 77% (10 of 13), operated their own non-doctrinal battalion CPs. The remaining three interviewed battalion/brigade leaders said they did not operate CPs but would transport the detainee to the division forward CP. Battalions held 12 to 20 detainees at their CPs for 12 hours up to 14 days, relying on their subordinate units to guard the detainees for extended periods of time. This guard requirement took Soldiers away from performing their combat mission and adversely impacted the combat effectiveness of their units. MP personnel are not doctrinally assigned at the company level to collect or guard detainees. The battalions required capturing units to complete all mandatory paperwork (sworn statements, Coalition Provisional Authority Forces Apprehension Form, and DD Form 2745) before accepting the detainees into their battalion CP. The interviewed combat arms brigade/battalion leaders (77%, 10 of 13) said TQ or interrogations of detainees were performed to gather tactical information if there were no trained interrogators at their location. Battalion commanders and S2s did their own interrogations of detainees to ease the backlog of detainees at CPs. Of these battalion commanders 18% (1 of 13) said they had a THT team at their location to conduct interrogation of detainees and 15% (2 of 13) said they did not question detainees. There were not enough interrogators to be pushed down to battalion level to conduct interrogations of detainees. Without trained interrogators at the battalion level and below, the units risked missing intelligence information by holding detainees, instead of quickly processing and transporting them to an area with trained interrogators. The battalion CPs provided detainees with; food, water, shelter, blankets, latrines, and limited medical treatment. Battalions transported the detainees to the division forward CP during re-supply operations.

Based on interviews with leaders in OCONUS/CONUS who said they operated division forward CPs located in a brigade area, the DAIG Team found 45% (5 of 11) were operated by non-MP units during the period of May 03 to April 04. Another 27% (3 of 11) of division MP platoons operating CPs required augmentation from 4 to 14 Soldiers from Infantry units to help them with this mission. The remaining 27% (3 of 11) of CPs were operated by MP platoons. The forward CPs held between 4 to 150 (150 detainees in one incident) detainees from 24 hours up to 54 days. The MP platoon provided trained MP personnel to handle, safeguard, and account for detainees. This included reviewing the point of capture unit's paperwork for each detainee, assigning detainees an internally generated detainee number, and a complete inventory of each detainee's personal belongings on a DA Form 4137. The personal belongings were bagged with the DA Form 4137 to include a matched internally generated detainee number and secured in an evidence room, separate cell, small footlocker, container, or tent. If the unit delivering detainees to the forward CP did not have the required paperwork (sworn statements, Coalition Provisional Authority Forces Apprehension Form, and DD Form 2745), the in-processing personnel would not accept the detainee into the CP until the unit completed the paperwork. The paperwork, to include evidence the unit brought in with the detainee, was a critical source of useful information the interrogator could use during their interrogations. The brigades were using their MI interrogators and contracted interpreters to interrogate detainees and gather tactical intelligence information for their units. Personnel operating CPs had different procedures in place for transferring a detainee to an interrogator. If the detainee was not leaving the CP then the guard did not have the interrogator sign for the detainee. When the interrogator was finished with the detainee he would return the detainee to the guard who would then return the detainee to the cell. However, if a detainee was taken outside the CP then the interrogator would sign for the detainee on a DD Form 2708 or DD Form 629, Receipt for Prisoner or Detained Person. Upon the detainee's return, the guards would sign for the detainee and the medic or guard would check the detainee for marks or bruises and then annotate the marks or bruises if any, on an SF 600, Medical Record - Chronological Record of Medical Care. The DAIG Team did a sampling of detainee records to include the SF 600 and the team found no annotations of marks or bruises. The detainees were provided; food, bottled water, shelter, blankets, latrines, and medical treatment. The unit transported detainees to the division central CPs by either ground (wheeled convoy) or air (CH-47 helicopter).

Two of 4 division central CPs were operated by a platoon from the division MP company, which required augmentation of 7 to 15 Soldiers from Infantry or Engineer units to help them with this mission. The remaining two division central CPs were operated by platoons from a different division or from a company from the MP battalion (Corps). MP platoons provided trained personnel to handle, safeguard, account for, and input information into the Detainee Reporting System (DRS) and or Biometric Automated Tool Set (BATS) system. This included a review of point of capture paperwork for each detainee and an inventory of their personal belongings on DA Form 4137. Once the inventory was complete the evidence custodian locked the detainee's personal property in a separate room. The central CPs used both MI interrogators and contract interrogators and interpreters to interrogate detainees. The MP guards did not have the interrogator sign for the detainee if the interrogator was not departing the CP. Division central CP SOP required the guards to have the interrogators sign a DD Form 629 or DD Form 2708, and enter the information on their DA Form 1594, Daily Staff Journal or Duty Officer's Log, if the detainee departed the CP. Three Provost Marshals said Other Government Agencies (OGAs) did interrogate detainees, however, this required their approval, and the OGAs had to sign for the detainee. Upon their return they were examined and resigned for to regain custody of the detainee. The division central CP held anywhere between 70 to 200 detainees from 72 hours up to 45 days. The division central CP provided the detainees with food, bottled water, shelter, blankets, latrines, and medical treatment. The division central CP transported detainees by ground convoys or helicopter to I/R facilities.

I/R facilities were operated and controlled by MP battalions, MP companies, and in lieu of units (non-MP units). MP personnel processed the detainees into their facilities, which included checking the detainees against the roster for arrival, obtaining weight and height, issuing an Internment Serial Number (ISN), medical screening, inventorying, and tagging property, and review of paperwork (sworn statement, Coalition Provisional Authority Forces Apprehension Form, completed DD Form 2745 verifying that detainee data was entered into the DRS system, and amending and updating the database information as required. The detainee's personal property was annotated on DA Form 4137 and placed in a bag or a box with the detainee's ISN number. The property was then placed in a controlled access evidence room. Each detainee was issued a blanket, jumpsuit, shoes, and a Qur- n as part of their inprocessing.

There was no specific length of time I/R facilities held detainees. The I/R facilities held anywhere from 1700 detainees up to a maximum of 7000 detainees depending on the facility. Inside each I/R facility were a series of compounds housing from 450 to 700 detainees each. The operations of I/R facilities and compounds were the responsibility of the MP (Combat Support) battalions who were sometimes not properly equipped with specific items necessary for detainee operations and were not trained specifically on detainee tasks in order to perform this mission. Additionally, in lieu of (ILO) units assigned the guard force (tower) and escort mission for I/R facilities received limited MP training at their Mobilization Site.

Interrogators used the screening procedure to identify a detainee who may have intelligence information. The interrogators screened both the detainee paperwork along with his/her personal effects to determine which individual possessed intelligence information. When an interrogator requested to screen a detainee's personal effects prior to the interrogation, the MP guard would have him sign for the items using DA Form 4137. The MP guard escorted the detainee to the interrogators, and since the detainee was not leaving the facility the interrogator was not required to sign for the detainees. If the detainee was leaving the facility a written authorization was required, and the guard had the individual sign for the detainee on a DD Form 2708 or DD Form 629. The MI units used military and contract interrogators and interpreters to interrogate the detainees. MP personnel provided the detainees with food, water (bottled water or 5 gallon cans), and access to medical treatment. Each compound had shelter, mats or cots to sleep on, latrines, and showers.

(4) Root Cause: Division level units are not resourced with sufficient numbers of Military Police personnel and Military Intelligence personnel (interrogators) to conduct detainee operations in a non-linear battlespace. Point of capture units did not comply with doctrine that requires the quick evacuation of detainees to internment facilities. Units held detainees at CPs closer to the point of capture for longer periods of time to conduct more effective interrogation and intelligence exploitation so they could obtain time-sensitive tactical intelligence.

(5) Recommendation: TRADOC and G3 update the Military Police force structure at the division level and below to support the simultaneous execution of detainee operations and other battlefield missions.

Recommendation: TRADOC and G3 update the Military Intelligence force structure at the division level and below to integrate the requirement for detainee operations that allows for timely intelligence exploitation.

Recommendation: TRADOC update doctrine to integrate tactical interrogation at battalion and company level to assist in the intelligence exploitation of detainees immediately upon capture.

d. Finding 12:

(1) Finding: There was no Theater Detainee Reporting Center (TDRC) acting as the central, theater-level agency responsible for detainee accountability, resulting in a lack of detainee personnel and data management.

(2) Standard: See Appendix E.

(3) Inspection Results: The Office of the Provost Marshal General (OPMG) has redesignated the doctrinal term Prisoner of War Information Center (PWIC) used in the above standards as the TDRC, and the doctrinal term National Prisoner of War Information Center (NPWIC) as the National Detainee Reporting Center (NDRC). The following inspection results will refer to these organizations by their redesignated titles.

The DAIG Team found there was no central agency in theater to collect and manage detainee information for OPERATION ENDURING FREEDOM (OEF) or OPERATION IRAQI FREEDOM (OIF), and no consolidated, comprehensive, and accurate database for detainee accountability. The TDRC that had the doctrinal mission to maintain detainee accountability was not deployed to OIF or OEF during the timeframe of the inspection. In OIF, the TDRC mission of detainee data collection was consolidated at one location in Iraq and was executed as an additional duty by a battalion S1 section. None of the major functions of the TDRC were performed in accordance with policy. Internment facilities were not fully accounting for detainees or property, and they were not meeting policy requirements. There were no procedures to ensure records on detainee disposition, health status, and personal/evidentiary property were adequately accounted for during movement of detainees between collecting points and internment facilities. Capturing units did not have standardized procedures for recording detainee personal and property information or for maintaining accountability. Doctrine and policy for detainee data collection need to be revised to address technological requirements for personnel accountability systems (biometrics) and the processing of non- compliant detainees in the current operating environment.

The TDRC is the specialized unit whose mission is to be the central agency in theater for total detainee and property accountability, from which consolidated detainee data is forwarded to the NDRC. There are two Reserve Component TDRCs, and no Active Component TDRCs, in the Army. TDRCs are structured as 59-Soldier units consisting of a headquarters detachment, operations, record keeping, property accountability, postal operations, public relations, information management, and other staff sections. TDRCs were not used in OIF or OEF. A TDRC was activated and deployed to Kuwait during the mobilization for OIF, but it did not move forward into Iraq in support of detainee operations and was re-deployed to Continental United States (CONUS). However, the large numbers of captured detainees, holding detainees longer for intelligence exploitation, and a slow release process resulted in a significantly higher detainee population and a demonstrated need for the TDRC.

In OIF, the TDRC mission of detainee data collection for Iraq was assigned to the MP battalion at Camp Bucca and overseen by the S1 as an additional duty. Detainee data was consolidated as it was received from locations throughout the country and forwarded to the NDRC. Forwarded data was often incomplete, and the S1 lacked the resources to track down missing data from reporting internment facilities. The TDRC responsibilities for detainee property accountability, tracking, records management, and postal operations were not met. The S1 performed as well as could be expected with limited organic assets, but it was impossible to execute the many mission requirements that would normally be executed by a 59- Soldier TDRC. A TDRC was not deployed in OEF. The internment facility at Bagram performed the mission of detainee data collection, consolidation, and reporting. Although information management and property accountability were more consistent in Afghanistan than in Iraq, most TDRC responsibilities were not being performed.

In the absence of a TDRC there were inefficiencies in accounting, reporting and tracking of detainee information from internment/resettlement facilities to the NDRC. The NDRC developed the automated Detainee Reporting System (DRS) as a standardized, automated data system that the TDRC uses to consolidate data from the internment facilities and forward to the NDRC. With no TDRC to provide oversight, OIF and OEF detainee processing centers often used simple spreadsheets or alternate automated data systems (Joint Automated Booking System (JABS) and Biometric Assessment Tool Set (BATS)) with the ability to capture biometric data (e.g., fingerprints), but these applications did not capture other data required by Army policy. Moreover, the alternate data systems were not compatible with DRS and could not transfer information to the NDRC. At the direction of the NDRC, the DRS became the primary automated database that internment facilities were required to use. Concurrently, internment facilities continued to enter data in JABS and BATS due to the inability of DRS to record biometric data. (Note: The DRS is projected to have the capability to collect and store fingerprints by July 2004.) There is a fourth detainee reporting system in place to collect the same data in Arabic for use by the Coalition Provisional Authority (CPA). Because of the use of multiple data systems, incomplete data entry, and the inconsistent implementation of the DRS there are approximately 50,000 missing data points in the NDRC database.

Capturing units did not have standardized procedures for recording detainee personal and property information or for maintaining accountability. In OEF and OIF, units at points of capture and collecting points were not uniformly using DD Form 2745, Enemy Prisoner of War (EPW) Capture Tag. Of the assessed units in Iraq (19%) were using DD Form 2745, compared to 55% in Afghanistan and 30% of units redeploying from both theaters. In Iraq, the Coalition Provisional Authority Forces Apprehension Form was used, a form that is more comprehensive than the EPW Capture Tag. Although the CPA form appears better than DD Form 2745 for the purpose of intelligence exploitation and continued custody determinations, there was no TDRC in theater to manage the use of the form or capture information from the form for forwarding to the NDRC. Units did not uniformly forward documentation (medical, evidence/property, capture, and intelligence documents) when detainees were transferred to other echelons of detention. Furthermore, there was no mechanism during the transfer process to maintain accountability for records that accompanied a particular detainee.

The DAIG concluded the reason for the lack of accountability, standardization and reliability of detainee data is directly related to the absence of the TDRC. The sole purpose of the TDRC, as the field operating agency for the NDRC, is to ensure the accountability of detainees and their property by standardizing practices throughout the theater and implementing DoD and Army policy. An 8-person Camp Liaison Detachment (CLD) was deployed as part of OIF 2 to perform the functions of the TDRC, in addition to numerous other responsibilities. They have received initial training on the DRS, but as a CLD they are not trained on the procedures for executing the other specific TDRC tasks. The CLD may be able to accomplish the TRDC mission if appropriately trained and relieved of additional, unrelated duties, but they lack sufficient manpower to address the backlog of unaccounted-for detainees and property.

(4) Root Cause: The TDRC was not deployed for OEF. In OIF, it was initially deployed and subsequently redeployed without moving forward in the theater.

(5) Recommendation: CFLCC submit a Request For Forces for the Theater Detainee Reporting Center (TDRC) to meet the requirements for reporting and accountability of detainees and their property.

Recommendation: The Provost Marshal General review the TRDC process, structure, and employment methods for maintaining information on detainees, their property, and other related requirements within an assigned theater of operations and consider the development of an information technology solution.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Sat Oct 12, 2013 3:23 am

PART 5 OF 22 (The Mikolashek Report)

e. Finding 13:

(1) Finding: The ongoing Military Intelligence Force Design Update is better suited to conduct simultaneous and sustained human intelligence missions in the current and future operating environment.

(2) Standard: See Appendix E.

(3) Inspection Results: The DAIG Team found the ongoing Military Intelligence - Counterintelligence/Human Intelligence Force Design Update is better suited than the current Military Intelligence force structure to conduct simultaneous and sustained human intelligence collection and counterintelligence/force protection missions in the current and future operating environments.

The current Military Intelligence (MI) force structure lacks the necessary 97E - Human Intelligence (HUMINT) Collectors (formerly called interrogators) and 97B - Counterintelligence personnel to conduct simultaneous and sustained HUMINT collection and counterintelligence/force protection missions. The current force structure does not allow the commander to employ the doctrinal concept of conducting both HUMINT and counterintelligence missions simultaneously. Currently the commander must choose which mission is the priority. These items are covered in the Current Military Intelligence Force Structure Section below.

The ongoing Military Intelligence - Counterintelligence/Human Intelligence (HUMINT) Force Design Update (FDU), provides the necessary 97E and 97B personnel to conduct simultaneous and sustained HUMINT collection and counterintelligence/force protection missions. Multiple MI initiatives and programs, specifically the Counterintelligence/HUMINT FDU, are reshaping the MI force structure in a multi-tiered approach, to include: increasing the 97E authorizations, converting 97Bs to 97Es, converting 97L (Translator/Interpreter) to 97E and 97B, rebalancing the Active Component (AC) to Reserve Component (RC) mix to move more personnel to the AC, increasing the number of MI units and the dispersion of Tactical Human Intelligence (HUMINT) Teams (THTs) in the division and Stryker Brigade force structures, and designing Human Intelligence (HUMINT) Collection Teams (HCTs) throughout the Unit of Action (UA), Unit of Employment x (UEx), and Unit of Employment y (UEy) level. These items are addressed in the Military Intelligence - Counterintelligence/Human Intelligence Force Design Update Section below.

CURRENT MI FORCE STRUCTURE

The MI mission to gain HUMINT information during detainee operations is performed by the 97E. In contrast, the 97B counters the intelligence gathering of foreign intelligence and security services (FIS). Gathering information from detainees focuses the 97Es on their specialty: gathering and developing intelligence from the local environment. The 97E10 is a highly trained Soldier who has gone through 82 weeks of training. This Soldier has completed language training from the Defense Language Institute, in addition to the required Military Occupational Specialty (MOS) training. Developing this asset is a costly and time-consuming process.

The current force structure does not give the commander on the ground the amount of 97E and 97B expertise required. A divisional MI battalion has all of the 97Es in the division (depending on the type of division, approximately 16 are authorized). The DAIG Team visited one division that had six 97Es. In the current operating environment people are the key terrain, but the force structure lacks 97Es and 97Bs at the brigade level.

The average maneuver brigade has an intelligence team consisting of four 97B - Counterintelligence personnel and three 97E - HUMINT personnel (approximately two Tactical HUMINT Teams (THTs)). These 97Es come from the division MI battalion. The commander must set the intelligence priorities at either HUMINT (gathering intelligence from the local environment and information exploitation from detainees) or at counterintelligence (denying FIS intelligence on U.S. Forces).

G3 Force Developers stated current rotations in OPERATION ENDURING FREEDOM (OEF) and OPERATION IRAQI FREEDOM (OIF) require approximately 130 THTs per deployment. There are approximately four personnel per team. The ongoing Counterintelligence/HUMINT Force Design Update has greatly contributed to meeting the current operational needs. Since 2001, the number of THTs has grown from 300 teams to 450 teams. Even with these changes, the current force structure lacks the depth to meet this doctrinal requirement for a sustained period.

There are usually three 97E HUMINT specialists in the current brigade force structure; they come from the division MI battalion. They gather intelligence on threat forces and capabilities. The 97Es, as part of THTs, accompany patrols, visit communities, talk to local leaders, to gather information on how U.S. Forces are being targeted. The 97Es evaluate the internment/resettlement (I/R) population to identify potential intelligence sources. They conduct interviews and interrogations across the range of detainees, gathering information from civilian internees, enemy prisoners of war (EPWs), and high-risk detainees (HRDs).

Information gathered from detainees is critical to meeting the doctrinal mission of the 97E "to conduct focused collection, analysis, and production on the adversary’s composition, strength, dispositions, tactics, equipment, personnel, personalities, capabilities, and intentions". Exploitation of intelligence gathered from EPWs and HRDs is one of the reasons detainees are kept beyond the doctrinal time standard at the point of capture and brigade level. The current force structure of three 97Es in the brigade (division MI battalion assets) provides limited resources to evaluate, gather, and analyze information from detainees.

The 97B counterintelligence mission requires the intelligence assets of the brigade to cover a large section of the local population. The brigade has a total of 4 counterintelligence specialists who gather information on threat forces and foreign intelligence services and their activities and then develop force protection and information denial measures. The 97B focus on denying intelligence to the enemy is based on their ability to stop the following FIS operations: counter-HUMINT, counter- signals intelligence (C-SIGINT), and counter-imagery intelligence (CIMINT). The 97Bs are not accomplishing their counterintelligence and force protection missions if they are supporting the HUMINT mission of gathering information from detainees.

The current force structure of the MI is a result of the 1997 Quadrennial Defense Review (QDR) process. The QDR reshaped tactical MI units, relying heavily on the Reserve Component (RC) to carry a large portion of MI personnel. Additionally, in 1994 and 1995, the Army restructured personnel authorizations and sent 97E personnel to the Defense Intelligence Agency.

A substantial number of active component 97Es and 97Bs are in U.S. Army Intelligence and Security Command (INSCOM) Theater Intelligence Brigades (BDEs)/Groups (GPs). Until recently, those personnel were not available to support rotational sourcing.

Some commands were using 97Bs to fill 97E requirements to meet the shortage of personnel who can conduct interrogations of detainees. Commanders who chose the collection and exploitation of information as the priority mission gave up the 97Bs from performing their counterintelligence/force protection mission. However, force protection is still a critical issue due to the non- linear battlefield. Based on the current force structure, the Army has the ability to support either force protection or HUMINT.

Currently, 60% of the 97E and 97B force structure is in the Reserve Component (RC). Deployment of some units as battalions vs. teams in early rotations to OEF followed by OIF artificially reduced the available population to support subsequent rotations. The buildup of RC THTs prior to OIF met the immediate requirement for tactical intelligence but denied a sustained capability. Additionally, the MOS qualification rate in the RC is at 50%. So even if all RC authorized positions were filled, only one-half of the personnel would be deployable.

The TRADOC proponent (U.S. Army Intelligence Center and Fort Huachuca) developed the Military Intelligence - Counterintelligence/HUMINT Force Design Update and other initiatives to meet the requirements of the current and future operating environments. G3 Force Management is restructuring the force through redesign of current Modified Tables of Organization and Equipment (MTOEs) of MI units and creation of new MTOEs. The new force structure increases the authorizations for and distribution of 97E and 97B.

MI - COUNTERINTELLIGENCE/HUMAN INTELLIGENCE FORCE DESIGN UPDATE

The Army recognizes the current force structure does not allow the commander to conduct the doctrinal missions of HUMINT and counterintelligence simultaneously. Currently, the commander must choose which mission is the priority. The Counterintelligence/HUMINT FDU was approved on 2 August 2001. Some aspects of the Counterintelligence/HUMINT FDU and other MI initiatives and programs have assisted the force in current operations, while the majority is still ongoing (as of 21 May 2004). The number of THTs in the Army has increased by 50% since 2001 (300 THTs to 450 THTs).

The main portions of the Counterintelligence/HUMINT FDU will occur from 2005 to 2009 Total Army Analysis 09 (TAA 09); additional changes will continue in 2007 through 2011 (TAA 11). The changes to the force structure are being documented in the UA, UEx, UEy, templates and in the Stryker Brigades’ Modified Tables of Organization and Equipment.

The near-term changes include adding one counterintelligence company per Theater at Echelon Above Corps Theater Intelligence Groups/Brigades in Fiscal Year (FY) 05-07. The FDU and other initiatives add a variety of active component Counterintelligence/HUMINT Teams to Theater Intelligence Groups/Brigades for an increase of 400 counterintelligence/HUMINT spaces in FY06. Other changes include revising the MI Corps Support BN (MI-CSB) and changing the MI-CSB allocation from one MI-CSB per Theater to one MI-CSB per Corps. Another Corps-level change is the creation of a "Corps G2X Cell" in the G2 section of the HHC with HUMINT authorizations.

Four counterintelligence and 2 HUMINT companies (U.S. Army Reserve) will activate in FY05-07. Finally, the AC/RC mix will rebalance, resulting in activation of 2 HUMINT companies and 1 counterintelligence company (active component) and deactivation of 2 U.S. Army Reserve counterintelligence companies.

The design of the HUMINT team will change. Previously, Warrant Officers led HUMINT teams; in the future a Sergeant First Class will lead some HUMINT teams. The current force structure can convert to an enlisted-led team by using currently available NCOs.

The Counterintelligence/HUMINT FDU is programmed to increase the number of 97E and 97B Soldiers; 97E will increase by 50%. An increase of "in excess of" 1400 97E and 97B personnel is programmed from FY05-07, including an increase in authorizations for 97E and 97B in the AC. Some of these changes will be the result of rebalancing the AC/RC mix of 97E. The 97E personnel increases have been implemented early and continue to occur. Other changes include the conversion of 460 Compo 2 MOS 97L (Translator/Interpreter) to 97E and 97B authorizations in FY05.

MI Branch will restructure the 97E MOS. 97E10 Soldiers will no longer have a language requirement following initial entry training (IET). By removing the language requirement at Skill Level 1 for 97E MOS the MI branch can send 97E10 Soldiers directly to units to gain experience. The language requirement will shift to a 97E20 requirement. Currently the 97E10 Soldier spends up to 82 weeks post-IET meeting the language requirement.

The Counterintelligence/HUMINT FDU and other initiatives will support the design of elements within the UEy, UEx, and UA. (The current design of the UEy, UEx, and UA are the base for this section of the report). This increase of counterintelligence/HUMINT units at each level is significant and is designed to add an intelligence gathering and processing capability at the UA level, as well as at higher levels. The Army's ability to add counterintelligence/HUMINT resources as it transforms into the Modular Design is based on an increase in the number of 97Es authorizations, which go from the FY04 level of 861 authorizations to the FY 11 projection of 3312 authorizations.

The UEy's Theater Intelligence Brigade will add an Exploitation Battalion and a RC Battalion that are in-Theater assets. The Exploitation Battalion and the RC Battalion will each add a counterintelligence company and a HUMINT company to the Theater, providing an additional 2 counterintelligence companies and 2 HUMINT companies to the commander.

The UEx has a G2X cell designed into its Main HQ staff. The G2X is a new organization not in the current division template. The G2X acts as the single point for all counterintelligence/HUMINT data. The G2X is a 6-person team led by an officer (MAJ/CPT) and contains a CW3 HUMINT Technician, one 97B, and three 97Es. Supplying information to the G2X are the Counterintelligence Control Authority (CICA) and the HUMINT Operations Cell (HOC). The CICA provides the counterintelligence function with 97Bs while the HOC adds 4 more 97Es for the HUMINT function. The G2X also contains a Language Coordination Section which sets up contracts for interpreters. The main HUMINT and counterintelligence gathering capability will exist in the UAs.

There are HUMINT and counterintelligence gathering capability in both Maneuver UAs (MUA) and Reconnaissance, Surveillance, and Target Acquisition UAs (RSTA UA). In the MUA and the RSTA UA the main HUMINT collection will be conducted by the HUMINT Collection Teams (HCTs) which have taken the place of the Tactical HUMINT Teams (THTs). The HCT is made up of four 97E whose mission is to gather HUMINT. This will eliminate the THTs’ requirement of dividing the time among the mission of the 97B and the 97E that made up the THT. The THT currently exists in the division force structure and the Stryker Brigade force structure; THTs are not in the UA or UE force structures.

Each MUA has an S2X in the headquarters, serving the same function as the G2X does at the UEx. The MUA also has an MI company with a robust intelligence gathering capability. The HUMINT platoon contains 26 Soldiers focused on gathering HUMINT. The HUMINT platoon has two Operations Management Teams (OMTs) that each manages two HCT. Each OMT also has the ability to serve as a HCT. At the minimum, each MUA has an organic capability to field four HCTs and, if needed, generate 2 more from the OMTs. This gives the UA commander the ability to put HCTs at the point of capture or where detainees are first encountered.

The RSTA UA has a greater HUMINT capability. The MI battalion in the RTSA UA has a Collection and Exploitation (C&E) company and a counterintelligence/HUMINT company. The C&E Company has 3 HCT platoons (28 Soldiers per platoon) with 1 OMT and 5 HCTs per platoon. The C&E Company has a total of 15 HCTs. The counterintelligence/HUMINT company has 9 OMTs and 27 HCTs. At the minimum, each RSTA UA will have 42 HCTs on the ground.

The significant difference from the current division force structure is that the average division has all 16 Soldiers with MOS 97E in the division MI battalion. The UEx will deploy into theater with a modular capability that is based on the mission requirements. If the UEx deploys with 4 MUAs and a RSTA UA, it will have a total of 20 OMTs and 58 HCTs and a robust HUMINT planning, coordination, and analysis capability.

(4) Recommendation: TRADOC and G3 continue to refine and implement the force structure changes in the Military Intelligence - Counterintelligence/Human Intelligence Force Design Update.

Recommendation: TRADOC integrate the Military Intelligence - Counterintelligence/Human Intelligence Force Design Updates into the development of Units of Action and Units of Employment.

f. Finding 14:

(1) Finding: The ongoing Military Police Force Design Update provides a force structure for internment/resettlement operations that has the flexibility and is better suited to conduct sustained detainee operations in the current and future operating environment.

(2) Standard: See Appendix E.

(3) Inspection Results: The DAIG Team found the ongoing Military Police - Internment/Resettlement Battalion Force Design Update provides a force structure for Military Police internment/resettlement operations that has the flexibility and is better suited than the current Military Police force structure to conduct sustained detainee operations in the current and future operating environments, to include control and internment of high-risk detainees.

The current Military Police force structure lacks the 31E (Internment/Resettlement Specialist) personnel to meet the requirements of manning the current detention facilities and conducting sustained detainee operations in the current and future operating environments, to include control and confinement of high-risk detainees. The 31E is the only Soldier trained to run a detention facility and specifically deals with controlling and confining high value detainees. The Active Component (AC) 31Es are in the Table of Distribution and Allowance (TDA) that runs the U.S. Military Disciplinary Barracks (USDB), staffs Guantanamo Bay Naval Station (GTMO) and other outside the continental United States (OCONUS)-based confinement facilities, and staffs continental United States (CONUS)-based confinement facilities. The Reserve Component (RC) does not have the 31E personnel to provide units to run sustained detainee operations. These items are covered in the Current Military Police Force Structure Section below:

The ongoing Military Police Internment/Resettlement (I/R) Battalion Force Design Update (FDU) standardizes the force structure of Active Component (AC) and Reserve Component (RC) I/R units, converts AC Tables of Distribution and Allowance (TDAs) to I/R Modified Tables of Organization and Equipment (MTOEs), and increases personnel and units throughout the AC and RC force structure. The FDU was approved September 2003, this analysis is based on that data and is current as of 21 May 2004. The increase of deployable 31Es will give Combatant Commanders the flexibility to conduct sustained detainee operations in a non-linear battlefield and the ability to control and confine high-risk detainees (HRDs). The I/R FDU provides the RC force structure necessary to carry out its sustainability mission. Employment of the I/R FDU has been incorporated into the Unit of Employment (UE) design at Unit of Employment y (UEy) level with staff support at Unit of Employment x (UEx) level. These items are covered in the Military Police Internment/Resettlement (I/R) Battalion Force Design Update Section below:

CURRENT MP FORCE STRUCTURE

The current AC TDA organizations, such as the U.S. Army Disciplinary Barracks (USDB) and Regional Correctional Facilities (RCFs) are not deployable, and each has a different force structure. Each facility will convert to at least one I/R company.

The AC 31E population is based out of 4 installations within CONUS TDA units and 2 Modified Table of Organization and Equipment (MTOE) MP battalions that are OCONUS. In CONUS, the largest population of 31Es is at the USDB at Fort Leavenworth. Large numbers of 31Es are also assigned to the 3 Regional Correctional Facilities (RCFs) at Fort Lewis, Fort Sill, and Fort Knox. These are TDA organizations and not designed to deploy, lacking a rotational base to support the TDA corrections mission and other missions such as GTMO. There are 824 AC MOS 31E authorizations in the Army; of these, 770 are directly related to running the current detention facilities. There are 371 31E authorizations at the USDB. The other 31E authorizations are at Fort Lewis (112), Fort Sill (81), Fort Knox (80), and 24 at Navy/Marine facilities (CONUS and OCONUS). The 2 OCONUS MP battalions contain 31Es in their MTOE, but lack the depth to support rotations; USAREUR has 76 authorizations and USFK has 26 authorizations. The remaining 54 are not directly working with U.S. prisoners or detainees. These Soldiers are at the U.S. Army Military Police School (24), recruiting (12), AC/RC support (6), and 12 others throughout the AC force.

The deployable 31Es are in the RC. The RC has 119 31E authorizations, 90 of which were filled as of 22 April 2004. The RC internment/resettlement (I/R) units' missions are to deploy or provide backfill for the AC's 31Es that deploy. However, the RC I/R units lack the qualified personnel to sustain the mission. Additionally, the RC has the only I/R command and control elements, two I/R brigades.

This force structure does not support the policy or doctrine requirement for a deployable, sustainable, and standardized, modular MP I/R battalion force design package that can meet the I/R operations objective of processing, handling, caring for, accounting for, and securing EPWs, CIs, RPs, ODs, DCs, and U.S. Armed Forces prisoners, as well as supporting the global war on terrorism (GWOT) and controlling and confining high-risk detainees. The I/R doctrine is a revision of the old Enemy Prisoner of War concept, reminiscent of Cold War doctrine applicable to a unit that is modular, capabilities-based, and deployable.

The new I/R doctrine adapts well to the Units of Action concept, however, the 31E force structure does not support I/R doctrine. FM 3-19.40, Military Police Internment/Resettlement Operations, 1 August 2001, covers most detainee operations, but at the time the doctrine was written, the MP Corps had not yet developed or defined the term high-risk detainee.

FM 3-19.1 Military Police Operations, Change-1, 31 January 2002, and FM 3-19.40, refer to the MPs as having the responsibility for coordinating sustainment for EPW/CI and that I/R battalions are equipped and trained to handle the EPW/CI mission for the long term. This is not true under the current force structure. By doctrine, an I/R battalion should support up to 4,000 EPWs/CIs, 8000 dislocated civilians, or 1500 U.S. Armed Forces prisoners. This formula does not address confinement of high-risk detainees. The current MP doctrine only focuses on long-term confinement of U.S. Armed Forces personnel.

The 31E Soldier receives his/her MOS training as part of Military Police Advanced Individual Training (AIT). All MP AIT is based on 31B (Military Police) training. There is a split in the MP AIT where 31Es and 31Bs go to different tracks. MOS 31E Soldiers take a 4-week Corrections track while the 31B receive 4 weeks of Law and Order training. The 31B (Military Police) do not receive corrections training. 31Bs receive one day of I/R training in MP AIT. The 31E10 gains MOS experience at a correctional facility or the USDB.

The current Military Police force structure is not designed to support Units of Action. The TDA-based AC units are not flexible, adaptable, or deployable.

The U.S. Army Training and Doctrine Command (TRADOC) proponent (U.S. Army Military Police School) developed an I/R Battalion Force Design Update and which was approved September 2003. G3 Force Management is restructuring the force through redesign of current MTOEs of AC and RC MP units and creation of new MTOEs. The new force structure increases the number of I/R units and 31E authorizations and is covered in the next section of this finding.

MP I/R BATTALION FORCE DESIGN UPDATE SECTION

The ongoing Military Police Internment/Resettlement (I/R) Battalion Force Design Update addresses the flexibility and sustainability of the current MP force structure. The current AC TDA organizations, such as the U.S. Army Disciplinary Barracks (USDB) and Regional Correctional Facilities (RCFs) are not deployable, and each has a different force structure. Each facility will convert to at least one I/R company.

The Director of Force Management approved the I/R Tables of Organization and Equipment (TOEs) on 17 May 2004. The I/R FDU will occur from Fiscal Year (FY04) through FY11. The FDU will standardize the I/R force structures in the AC and RC. The distribution of personnel and units will rebalance between the AC and RC, giving the AC the ability to immediately deploy I/R companies. The RC will have the force structure to accomplish the mission of backfilling Army confinement facilities as well as providing a sustained rotation of deployable units.

The I/R FDU will standardize the force structure and increase the MOS 31E expertise within the units conducting the I/R mission. The I/R battalion will be modular in nature, providing a command and control capability that is flexible and tailorable, that by design supports the Units of Action concept. The MP I/R battalion will be a flexible base that can be tailored to the Theater of Operations and the operating environment.

The I/R battalion Headquarters and Headquarters Detachment (HHD) is a 74-person unit that provides the command and control function and supports a mix of I/R companies, guard companies, and I/R detachments as required. A standard I/R battalion template for deployment could include the battalion HHD, 1 guard company, 1 I/R company, and 3 I/R detachments.

The I/R company is tailored around accomplishing the 31E mission and is the base of the new force structure. It can operate independently or as part of an I/R battalion. The I/R company will have 124 personnel, with 100 31Es. It has the built-in administrative support to conduct detainee operations as well as 2 internment platoons and a Maximum Security Section. The internment platoons each contain 42 personnel while the Maximum Security Section has 12 personnel. The Maximum Security Section is different from an I/R detachment. The I/R company should have the ability in the short term to control and intern HRDs, a capability that is essential in the current operating environment.

The I/R company can either operate as a stand-alone organization or operate as part of an I/R battalion. In either mission it provides command and control, staff planning, administration and logistical services (for both assigned personnel and the prisoner population). If the I/R company operates as a stand-alone unit, it is limited in the detainee operations functions it can perform. The stand-alone I/R company can operate either a U.S. Armed Forces prisoner confinement facility or a high-risk detainee internment facility.

If the I/R company operates as part of an I/R battalion, it can conduct a wider range of detainee operations due to the support of the I/R battalion's guard company and I/R detachments. When the I/R company operates as part of I/R battalion, it can operate the following types of facilities: high-risk detainee internment facilities; Enemy Prisoner of War/Civilian Internee (EPW/CI) internment facilities; or displaced civilian (DC) resettlement facilities.

The I/R company and I/R battalion force structures are focused on the I/R mission. Any I/R unit will require support from the Command it falls under. I/R units will require engineer support to build facilities, medical support for Soldiers and detainees, maintenance support, water purification, and other support as required.

The I/R company's main focus is supporting its 2 internment platoons and 1 Maximum Security Section. The I/R company has different capabilities based on whether it is conducting stand-alone operations or operating as part of an I/R battalion. If operating in the stand-alone function the I/R company has the capability to confine up to 300 U.S. prisoners or detain up to 100 high-risk detainees. If the I/R company is operating as part of an I/R battalion, the I/R company has the capability to detain up to 300 high-risk detainees when supported by 1 MP guard company. The I/R company also has the capability to conduct detainee operations for enemy prisoners of war/civilian internees or resettlement operations for dislocated civilians. In these detainee operations, the I/R company will also require support from one MP guard company.

The Maximum Security Section in the I/R company is responsible for detainees/prisoners who require special supervision, control, and discipline. These detainees/prisoners require close and intense management, special precautions, and more stringent confinement, search, and handling measures. The Maximum Security Section is merged with the internment platoons when conducting high-risk detainee operations.

The MP guard company has personnel and equipment resources to provide a perimeter security function as well as a transportation function. Each guard company has 3 platoons of 31Bs. Each platoon has four 11-man squads. The MP guard company has 3 light medium tactical vehicle (LMTV) trucks and 16 high mobility multipurpose wheeled vehicle (HMMWV) trucks authorized. This robust guard force and transportation assets will give the I/R battalion the capability to control and transport detainees using internal resources.

The I/R detachment is a 24-person unit that exists only in the RC. The I/R detachment augments an AC or RC I/R battalion HHD. There are no 31Es in an I/R detachment; the detachments support the detainee operations mission by providing 31Bs to act as outside-the-wire security and additional support personnel. The I/R detachment is not designed to detain HRD or U.S. prisoners. The 60 I/R detachments allow a high degree of flexibility in modularizing any organization for a mission. These units are designed to be mobilized and attached to other units as needed.

To meet the requirement for the I/R FDU, G3 plans to increase 31E authorizations through conversion of some 31Bs (Military Police) to 31Es (Internment/Resettlement Specialist), increased recruiting for 31E positions, and a redesignation of RC units to the 31E mission.

The conversion of Active Component MP TDA organizations to an I/R company MTOE has begun. The first AC I/R company will activate in FY04 at Guantanamo Bay (GTMO). A total of 10 AC I/R companies will activate by FY11.

The RC will contain the bulk of the 31E units and personnel. The RC currently contains 119 authorizations. When the I/R battalion FDU is completed in FY11, the RC will contain approximately 1720 31E authorizations, a 14-fold increase in personnel.

The U.S. Army Reserve (USAR) will contain most of the I/R battalions, while the Army National Guard (ARNG) will contain most of the I/R companies. By FY11, the RC will be organized with 20 I/R battalions (17 USAR, 3 ARNG) compared to the AC's 1 I/R battalion. The RC will have 17 I/R companies (7 USAR, 10 ARNG) compared to the AC's 10 I/R companies. The RC will contain all 60 I/R detachments (51 USAR, 9 ARNG). The I/R sustainment mission will be supplemented by this RC build-up of 17 I/R companies and 60 I/R detachments.

Based on the currently proposed MTOE, the standard I/R battalion will deploy with a battalion HHD, 1 guard company, 1 I/R company, and 3 I/R detachments. The template for a deployed I/R battalion will contain 427 personnel; 101 of them will be 31Es. The I/R company contains the 31E personnel in the 2 I/R platoons and the Maximum Security Section. The I/R FDU units contain the following personnel:

• I/R battalion HHDs: 74 total personnel (one 31E)
• I/R companies: 124 total personnel (100 31Es)
• I/R platoons: 42 total personnel (41 31Es)
• Maximum Security Sections: 12 total personnel (12 31Es)
• MP guard companies: 157 total personnel (no 31Es)
• I/R detachments (RC only): 24 total personnel (no 31Es)

The I/R FDU is designed to provide I/R units to the UEy that meet the specific requirements of the commander. The primary employment of 31Es will be at the UEy level. They will deploy in the I/R configuration best suited to the mission, whether it be as I/R brigades or I/R battalions. Current planning calls for two 31E NCOs (E-7s) working on the UEx staff, one in the UEx Main and one in the UEx TAC. Both will act as liaisons to the UEy I/R units and as advisors on I/R capabilities at the UEx level. There are no current plans to place 31Es in the Unit of Action (UA) or Stryker Brigades.

A UA will contain a 41-person MP platoon (31Bs). There will be no 31Bs in the Stryker Brigades. In the UEx and UEy, the 31Bs outside of the I/R units will not be primarily tasked with I/R operations.

(4) Recommendation: TRADOC and G3 continue to refine and implement the force structure changes in the Military Police - Internment/Resettlement Battalion Force Design Update.

Recommendation: TRADOC integrate the Military Police - Internment/Resettlement Battalion Force Design Update into the development of Units of Action and Units of Employment.

g. Finding 15:

(1) Finding: Three of 4 inspected internment/resettlement facilities and many of the collecting points, had inadequate force protection measures, Soldier working conditions, detainee living conditions, and did not meet the minimum preventive medicine and medical treatment requirements.

(2) Standard: See Appendix E.

(3) Inspection Results: The DAIG Team inspected 4 internment/resettlement (I/R) facilities and 12 forward and central collecting points (CPs). Three of 4 inspected internment/resettlement (I/R) facilities, and 3 of 12 (25%) inspected collecting points (CPs), had problems and shortcomings with deteriorating infrastructure that impacted on having a clean, safe, and secure working environment for Soldiers and living conditions for detainees. Poor food quality and food distribution, lack of laundry capability, and lack of personal hygiene facilities at some of these facilities affected the detainees' living conditions. Overcrowding, safety hazards, frequent enemy hostile fire, and lack of in-depth force protection measures also put both Soldier and detainee at risk.

Four of 16 (25%) inspected facilities (Camp Bucca, Bagram, Abu Ghraib, and Brassfield- Mora) were found to have safety hazards that posed risks to Soldiers and detainees. In addition, there was little evidence that units operating facilities had safety inspection programs in place. Safety programs in just a few facilities amounted to nothing more than detainee fire evacuation plans, weapons clearing procedures, and military working dog safety considerations. At the time of the inspection, Camp Cropper, Camp Bucca, and Abu Ghraib did not have finalized and approved Standing Operating Procedures (SOPs) for their facilities. At the time, units were busy revising and tailoring their SOPs for the mission. However, during SOP reviews conducted by the DAIG Team, there was no evidence that the risk management process was being incorporated into the working draft SOPs as required. Reviews of finalized SOPs at other facilities yielded the same results as the working drafts—no risk management was incorporated into SOPs.

No units fully complied with the medical treatment of detainees or with the sanitary conditions of the detainee facilities. Not all medical personnel supporting division CPs and I/R facilities were aware of detainee medical treatment requirements or had the proper equipment to treat a detainee population. The medical personnel interviewed stated that they did not receive any specific training in detainee operations and were not aware of Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, 1 October 1997, although most believed they were required to treat detainees to the same standard of care as Coalition Forces. There was a widespread lack of preventive medicine staffing, supplies, and equipment to meet the needs of CPs and I/R facilities. This shortfall was compounded by the failure of units to deploy appropriately trained and supplied field sanitation teams. Medical leaders responsible for direct oversight of preventive medicine personnel lacked specific training in detainee operations and field sanitation. I/R facility site selection, design and construction decisions did not incorporate preventive medicine considerations. There was significant variance in the hygiene and sanitation conditions at CPs and in I/R facilities throughout Afghanistan and Iraq. While major improvements continue to upgrade conditions at most sites, the process has been hampered by shortages of preventive medicine personnel and materiel, problems with site selection and design, and detainee populations that exceed the current system capacity. Lack of trained preventive medicine personnel and required field sanitation supplies has contributed significantly to deficiencies in hygiene and sanitation at CPs and I/R facilities.

CAMP BUCCA

Soon after the ground conflict began in Iraq, the Camp Bucca I/R facility was designed and established as an internment facility for Enemy Prisoners of War (EPWs). At the time of the DAIG inspection, Camp Bucca was considered an overflow I/R facility for Abu Ghraib, and all detainees were kept in the old facility, which contained 6 compounds. The new facility, containing six additional compounds, was in the final stages of completion. The old facility housed a non-compliant Civilian Internee (CI) population, third-country nationals, and a very small number of EPWs. Detainees were not segregated according to category (i.e., EPWs and CIs (to include Security Internees) were housed together in compounds 7 through 11). Compound 12 housed the third-country nationals.

The DAIG Team found inadequate security measures at the Camp Bucca. Camp Bucca had 2 controlled entry points leading into the compound, but blind spots along the perimeter made access possible at other points. The facility had a sally port gate, but it was used as a serpentine instead of a true double-gate security mechanism to control the entrance and exit of personnel and vehicles. The perimeter security consisted of roving guards, a gate guard, and a guard in each of the towers. There were 2 vehicular security patrols, but they would consistently take the same route, making them vulnerable to enemy attacks and Improvised Explosive Devices (IEDs) placed on the patrol route. The visitation process at Camp Bucca presented security concerns. During visitation hours Iraqi family members were searched at the exterior entry point, but thereafter they were allowed to mingle around guards who were carrying weapons until they were taken inside the compound to visit detained relatives. This posed a major security concern should one or more of the visitors overtake a guard and seize his weapon.

In numerous places at the old facility, the triple-standard concertina wire was overstretched and not tied down properly, and the short and long U-shaped pickets were not spaced properly. This, and the fact that the detainees vastly outnumbered the guard force, posed a security concern and potentially put Soldiers at risk if detainees rushed the wire. There were 8 perimeter towers that were not mutually supporting, creating dead space and blind spots throughout the old compounds. The towers also did not have effective communications with the roving guards. The facility had good lighting according to leaders and Soldiers due to recently receiving 32 trailer-mounted portable light stands that can be moved around the facility as needed. The acquired light stands significantly improved the lighting around the compounds. At the time of the Taguba Investigation, the perimeter lighting around Camp Bucca was inadequate and needed to be improved to illuminate dark areas that routinely became avenues of escape. Many of the security concerns due to the wire fences were corrected when the detainees were transferred to the 6 new compounds that have been constructed. The chain link fence at the new compounds was not staked to the ground between fence posts to prevent detainees from slipping through the bottom. However, to overcome this shortcoming, the battalion was placing concertina wire around the inside perimeter of the chain-link fence. This is a significant improvement in security over the old compounds. Detainees were transferred to the new compounds after the DAIG visit. These safety and security concerns were resolved once the detainees were transferred and the old compounds phased out.

According to interviews and sensing sessions at Camp Bucca, Soldiers said food is distributed and served in 30 gallon plastic containers, sometimes long after it is prepared. Detainees served themselves by dipping whatever containers they possessed into the food. No utensils were provided, and no portion control measures were in place to ensure that each detainee got the proper amount of food. One leader interviewed stated that serving ladles were on order, but none were on-hand. Food frequently ran out before all detainees had an opportunity to eat. Soldiers stated in sensing sessions that Meals, Ready to Eat (MREs) had to be used to ensure all detainees were fed. The detainees got their drinking water from water spigots at Camp Bucca. It was noted during the walk-through that at least one water source at one of the compounds was located several feet from the human waste dump (septic tank). This problem was eliminated once the detainees were transferred.

There was no laundry service at Camp Bucca to support the detainees so they did their own laundry with the small tubs and soap given them. However, leaders and Soldiers said during interviews that they did not know if there were enough washtubs supplied to the detainees. They were not sure how many detainees actually possessed tubs and soap, and where the tubs were located within the 6 compounds.

Camp Bucca did not routinely receive hostile fire, if at all. However, the compounds did not have adequate force protection measures in place to ensure the safety and protection of detainees and Soldiers from potential hostile indirect and small arms fire. There were no bunkers or shelters constructed with overhead cover for detainees to enter if the compounds came under attack. There were also no such bunkers or shelters constructed in the new compounds where the detainees are scheduled to be transferred.

The Taguba Investigation mentioned Camp Bucca as significantly over its intended maximum capacity, with a guard force that is under-manned and under-resourced. The DAIG Team found that Camp Bucca was not overcrowded nor under-manned because the facility had been scheduled to be discontinued as an I/R facility, and a drawdown in the detainee population had occurred after the investigation was conducted. A decision to use it as an overflow facility for Abu Ghraib kept it operational. The detainee population during the DAIG Inspection was 1769. Capacity for the newly constructed facility is 4500 according to the command briefing given to the DAIG Team.

BAGRAM I/R FACILITY

The Bagram I/R facility was designed and used as a Soviet aircraft maintenance facility that was built in the early 1960s. The DAIG Team found several safety hazards at the facility that posed risks to both Soldiers and detainees. Based on the document review and a thorough walk-through of the Bagram I/R facility, there was little evidence of a unit safety program. However, extensive engineering and environmental surveys of the facility, to include contaminated rooms and roof failures, had been recently conducted. At the time of the DAIG inspection, the infrastructure to support the facility was inadequate. Examples included inadequate ventilation/climate control and lighting on the main floor, the electrical distribution system throughout the facility, and non-existent sanitary facilities at the main floor.

In the Bagram I/R facility, there were no handrails and banisters on many of the steep stairwells and landings. The DAIG Team determined this was particularly dangerous while Soldiers escorted blindfolded detainees up and down the stairs. Team members actually witnessed Soldiers escorting blindfolded detainees on these stairs. Some drop-offs from the second floor landings were 5 to 7 feet.

Potential shock hazards existed at the Bagram I/R facility. There were numerous examples of open and exposed electrical wiring around the facility, to include a major electrical panel located in the vicinity of a known roof leak. Throughout the office areas, uncovered receptacles and light switches were found.

Contaminated soil (evidence of heavy metals) was found in the former metal plating rooms. The rooms were previously used as a metal plating facility as part of the Soviet aircraft maintenance facility. The unit requested and received an environmental survey of the rooms, and the conclusion was that the sampled materials represented a health risk. A rough cost estimate ($3-6 million) to remediate the contaminated rooms was cost-prohibitive, and the decision was made to seal the rooms to protect Soldiers and detainees from exposure.

According to an interview, lead-based paint was procured from the local economy to paint the interior in various locations in the facility. Lead-based paint had been used in the past and was still being used in the Bagram I/R facility, creating a potential risk to Soldiers and detainees.

Concerning the non-existing sanitary system, Soldiers were required to remove modified portable latrines from each detainee group cell by hand. These latrines were dragged to a designated location outside the facility where contractors would empty and clean them. After cleaning the latrines, Soldiers dragged the latrines back into place in each detainee cell. During interviews and sensing sessions, Soldiers stated that human waste spills were frequent on the main floor. There was a project ongoing that will remedy this problem. The project included an installed indoor septic system that consisted of a 4-inch main line running underneath the newly poured concrete pads and along the length of the group cells. Toilets were being installed inside of each cell, and the effluent will flow via gravity to an exterior waste system. The estimated completion date was April or May 2004.

The facility had multiple roof leaks, to include an area that was repaired after damage from aerial bombing. In December 2003, the engineer group conducted a roof inspection and found possible obstructed roof drains and deterioration of parapet walls and flashing. The estimated cost to repair the roof is $350K. This project was not funded at the time of the inspection.

At the time of this inspection, the facility had inadequate personal hygiene facilities for the number of detainees. An ongoing indoor plumbing system project to fix the problem will consist of a newly built shower room with full shower capabilities (10 shower heads) as well as a white water supply system. The fresh water supply will be housed inside of an exterior water system building that must also be designed and built.

The electrical distribution system in place was inadequate, especially to support planned upgrades for the facility that include lighting for new cells and towers and power for the Morale, Welfare, and Recreation room for the Soldiers. Current electrical amperage draw is 1279.7 amps. Amperage draw, once the upgrades are complete, will increase by another 340 amps, beyond the current transformer's capability of 1441 amps. The facility engineer was assessing the electrical load and prioritizing electrical distribution throughout the facility, with office air conditioning units and hot water heaters being shut down first during overloads to the system. There was concern that serious overloads to the system will occur this summer. There is a project planned to replace the transformer and renovate the electrical distribution system for the facility, but at the time of the inspection the project had not been funded.

ABU GHRAIB

Abu Ghraib had problems with deteriorating infrastructure that impacted the clean, safe, and secure working environment for Soldiers and living conditions for detainees. Poor food quality and food distribution, lack of laundry capability, and inadequate personal hygiene facilities affected the detainees' living conditions. Overcrowding, frequent enemy hostile fire, and lack of in-depth force protection measures also put Soldiers and detainees at risk. There is a separate finding concerning Abu Ghraib. See Finding 3 in Chapter 3.
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