Memorandum for Inspector General, by Alberto Mora

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Memorandum for Inspector General, by Alberto Mora

Postby admin » Sat Nov 21, 2015 2:50 am

by Alberto Mora
July 7, 2004



WASHINGTON, D.C. 20350-1000

JULY 7, 2004

SECRET - Unclassified upon removal of attachments



Ref: (a) NAVIG Memo 5021 Ser 00/017 of l8 Jun 04

This responds to your request at reference (a) for a statement that chronicles any involvement by the Department of the Navy Office of the General Counsel (OGC) or me personally in the development of the "interrogation rules of engagement" (IROE) for operation Enduring Freedom and Operation Iraqi Freedom. The following narrative adopts a slightly broader focus. It seeks to describe any such knowledge or involvement as OGC or I had on any aspect of the interrogation techniques used or contemplated following September 12, 2001, including participation in legal analysis or discussions of such issues. In the end, it is largely an account of my personal actions or knowledge. Unless otherwise indicated, the use below of the term "OGC" includes my personal knowledge or activity as well as that of other OGC attorneys or personnel.

Before discussing the specifics of this involvement, four key factors or events warrant mention by way of background;

First, as a general rule, OGC has not had any official responsibility for or involvement in detainee interrogation practices, procedures, or doctrines, including IROE. Because the Department of the Navy (DON) does not have and has not had assigned responsibilities for detainee interrogation matters, OGC was neither consulted nor informed of such issues. Apart from the incidental events recounted here, the one exception to this occurred on January 17, 2003, when the General Counsel of the Air Force, acting pursuant to SECDEF and DOD GC direction, requested that OGC participate in an inter-service Detainee Interrogation Working Group. When the Working Group ceased its work in late March 2003, OGC official involvement in detainee interrogation issues also stopped.

Second, my duties as General Counsel of the Navy include serving as the Reporting Senior within the DON Secretariat for the Naval Criminal Investigative Service (NCIS). These duties extend beyond the function of providing legal counsel and include general oversight responsibility over NCIS operations, policies, and budget. As a component under the operational control of other commands, NCIS has had some worldwide involvement on issues of detainee custody, treatment, and criminal interrogations and, specifically, those involving the Guantanamo detainees. As a result, I gained a measure of insight into detainee treatment and interrogation practices commensurate with NCIS's scope and degree of involvement.

Third, in December 2002, I received a report of detainee abuse occurring at Guantanamo Naval Base, Cuba, and complaints about interrogation guidelines pertaining to those detainees. Because the Guantanamo detainee interrogations, as noted above, were not the responsibility of the DON, I had no official oversight responsibilities in the matter. These alleged abuses were not being inflicted by Navy or Marine Corps personnel or pursuant to DON authorities or actions. OGC attorneys were not involved. Nonetheless, I chose to inquire further into the allegations. This narrative largely involves my response to the allegations that interrogation abuses were occurring at Guantanamo.

Fourth, in the following narrative a number of meetings and conversations are recounted, but this account is by necessity somewhat incomplete. While I have attempted to identify all individuals who participated, this was not always possible. Also, the narrative does not attempt to document the numerous meetings or conversations on the issues that I held with DON staff and colleagues as the events unfolded, in particular with my two Deputy General Counsel, Tom Kranz and William Molzahn; my Executive and Military Assistants, CAPT Charlotte Wise and Lt Col Rick Schieke; the Judge Advocate General, RADM Michael Lohr; the Staff Judge Advocate to the Commandant, BGen Kevin Sandkuhler; the Counsel to the Commandant, Peter Murphy; and many senior OGC attorneys.

With this background, the following constitutes a chronological narrative of the significant events pertaining to detainee interrogations in which OGC or I participated or of which I had knowledge.

17 Dec 02

In a late afternoon meeting, NCIS Director David Brant informed me that NCIS agents attached to JTF-160, the criminal investigation task force in Guantanamo, Cuba, had learned that some detainees confined in Guantanamo [1] were being subjected to physical abuse and degrading treatment. This treatment -- which the NCIS agents had not participated in or witnessed -- was allegedly being inflicted by personnel attached to JTF- 170, the intelligence task force, and was rumored to have been authorized, at least in part, at a "high level" in Washington, although NCIS had not seen the text of this authority. The NCIS agents at Guantanamo and civilian and military personnel from other services were upset at this mistreatment and regarded such treatment as unlawful and in violation of American values. Director Brant emphasized that NCIS would not engage in abusive treatment even if ordered to and did not wish to be even indirectly associated with a facility that engaged in such practices.

Director Brant asked me if I wished to learn more. Disturbed, I responded that I felt I had to. We agreed to meet again the following day. That evening, I emailed RADM Michael Lohr, the Navy JAG, and invited him to attend the next morning's meeting with NCIS.

18 Dec 02

I met with Director Brant and NCIS Chief Psychologist Dr. Michael Gelles. Dr. Gelles had advised JTF-160 in interrogation techniques and had spent time at the detention facility. Also present were OGC Deputy General Counsel William Molzahn, RADM Michael Lohr, and my Executive Assistant, CAPT Charlotte Wise.

Dr. Gelles described conditions in Guantanamo and stated that guards and interrogators with JTF-170, who were under pressure to produce results, had begun using abusive techniques with some of the detainees. These techniques included physical contact, degrading treatment (including dressing detainees in female underwear, among other techniques), the use of "stress" positions, and coercive psychological procedures. The military interrogators believed that such techniques were not only useful, but were necessary to obtain the desired information. NCIS agents were not involved in the application of these techniques or witnesses to them, but had learned of them through discussions with personnel who had been involved and through access to computer databases where interrogation logs were kept. Dr. Gelles showed me extracts of detainee interrogation logs [2] evidencing some of this detainee mistreatment. (Att 1)

These techniques, Dr. Gelles explained, would violate the interrogation guidelines taught to military and law enforcement personnel and he believed they were generally violative of U.S. law if applied to U.S. persons. In addition, there was great danger, he said, that any force utilized to extract information would continue to escalate. If a person being forced to stand for hours decided to lie down, it probably would take force to get him to stand up again and stay standing. In contrast to the civilian law enforcement personnel present at Guantanamo, who were trained in interrogation techniques and limits and had years of professional experience in such practices, the military interrogators were typically young and had little or no training or experience in interrogations. Once the initial barrier against the use of improper force had been breached, a phenomenon known as "force drift" would almost certainly begin to come into play. This term describes the observed tendency among interrogators who rely on force. If some force is good, these people come to believe, then the application of more force must be better. Thus, the level of force applied against an uncooperative witness tends to escalate such that, if left unchecked, force levels, to include torture, could be reached. Dr. Gelles was concerned that this phenomenon might manifest itself at Guantanamo.

Director Brant reiterated his previous statements that he and the NCIS personnel at Guantanamo viewed any such abusive practices as repugnant. They would not engage in them even if ordered and NCIS would have to consider whether they could even remain co-located in Guantanamo if the practices were to continue. Moreover, this discontent was not limited to NCIS; law enforcement and military personnel from other services were also increasingly disturbed by the practice.

Director Brant also repeated that NCIS had been informed that the coercive interrogation techniques did not represent simply rogue activity limited to undisciplined interrogators or even practices sanctioned only by the local command, but had been reportedly authorized at a "high level" in Washington. NCIS, however, had no further information on this.

The general mood in the room was dismay. I was of the opinion that the interrogation activities described would be unlawful and unworthy of the military services, an opinion that the others shared. I commended NCIS for their values and their decision to bring this to my attention. I also committed that I would try to find out more about the situation in Guantanamo, in particular whether any such interrogation techniques had received higher-level authorization.

19 Dec 02

Knowing that the Department of the Army had Executive Agent responsibility for Guantanamo detainee operations, I called Steven Morello, the Army General counsel, and told him that I had heard of alleged interrogation abuses in Guantanamo. Mr. Morello responded that he had information on the issue and invited me to visit with him and his deputy, Tom Taylor, to discuss it further.

In the Army OGC offices, Mr. Morello and Mr. Taylor provided me with a copy of a composite document (Att 2) capped by an Action Memo from DOD General Counsel William Haynes to the Secretary of Defense entitled "Counter-Resistance Techniques." The memo, which I had not seen before, [3] evidenced that on December 2, 2002, Secretary Rumsfeld had approved the use of certain identified interrogation techniques at Guantanamo, including (with some restrictions) the use of stress positions, hooding, isolation, "deprivation of light and auditory stimuli," and use of "detainee- individual phobias (such as fear of dogs) to induce stress." This composite document (further referred to as the "December 2nd Memo") showed that the request for the authority to employ the techniques had originated with an October 11, 2002, memorandum from MG Michael Dunlavey, the Commander of JTF-170, to the Commander, SOUTHCOM, and had proceeded up the chain of command through the Joint Staff until reaching the Secretary. The Dunlavey memo was accompanied by a legal brief signed by LTC Diane Beaver, the SJA to JTF-170, generally finding that application of the interrogation techniques complied with law.

Mr. Morello and Mr. Taylor demonstrated great concern with the decision to authorize the interrogation techniques. Mr. Morello said that "they had tried to stop it," without success, and had been advised not to question the settled decision further.

Upon returning to my office, I reviewed the Secretary's December 2nd Memo and the Beaver Legal Brief more closely. The brief held, in summary, that torture was prohibited but cruel, inhuman, or degrading treatment could be inflicted on the Guantanamo detainees with near impunity because, at least in that location, no law prohibited such action, no court would be vested with jurisdiction to entertain a complaint on such allegations, and various defenses (such as good motive or necessity) would shield any U.S. official accused of the unlawful behavior. I regarded the memo as a wholly inadequate analysis of the law and a poor treatment of this difficult and highly sensitive issue. As for the December 2nd Memo, I concluded that it was fatally grounded on these serious failures of legal analysis. As described in the memo and supporting documentation, the interrogation techniques approved by the Secretary should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture, a degree of mistreatment not otherwise proscribed by the memo because it did not articulate any bright-line standard for prohibited detainee treatment, a necessary element in any such document. Furthermore, even if the techniques as applied did not reach the level of torture, they almost certainly would constitute "cruel, inhuman, or degrading treatment," another class of unlawful treatment.

In my view, the alleged detainee abuse, coupled with the fact that the Secretary of Defense's memo had authorized at least aspects of it, could -- and almost certainly would -- have severe ramifications unless the policy was quickly reversed. Any such mistreatment would be unlawful and contrary to the President's directive to treat the detainees "humanely." In addition, the consequences of such practices were almost incalculably harmful to U.S. foreign, military, and legal policies. Because the American public would not tolerate such abuse, I felt the political fallout was likely to be severe.

I provided RADM Lohr with a copy of the December 2nd Memo and requested that Navy JAG prepare a legal analysis of the issues. I also decided to brief Secretary of the Navy Gordon England and take my objections to DOD GC Haynes as quickly as possible.

Later that day, RADM Lohr wrote via email that he had brought the allegations of abuse to the attention of the Vice Chief of Naval Operations, ADM William Fallon. (Att 4)

20 Dec 02

At 1015, in a very short meeting, I briefed Navy Secretary Gordon England on the NCIS report of detainee abuse, on the December 2nd Memo authorizing the interrogation techniques, and on my legal views and policy concerns. I told him I was planning to see DOD GC Haynes that afternoon to convey my concerns and objections. Secretary England authorized me to go forward, advising me to use my judgment. [4]

That afternoon I met with Mr. Haynes in his office. I informed him that NCIS had advised me that interrogation abuses were taking place in Guantanamo, that the NCIS agents considered any such abuses to be unlawful and contrary to American values, and that discontent over these practices were reportedly spreading among the personnel on the base. Producing the December 2nd Memo, I expressed surprise that the Secretary had been allowed to sign it. In my view, some of the authorized interrogation techniques could rise to the level of torture, although the intent surely had not been to do so. Mr. Haynes disagreed that the techniques authorized constituted torture. I urged him to think about the techniques more closely. What did "deprivation of light and auditory stimuli" mean? Could a detainee be locked in a completely dark cell? And for how long? A month? Longer? What precisely did the authority to exploit phobias permit? Could a detainee be held in a coffin? Could phobias be applied until madness set in? Not only could individual techniques applied singly constitute torture, I said, but also the application of combinations of them must surely be recognized as potentially capable of reaching the level of torture. Also, the memo's fundamental problem was that it was completely unbounded -- it failed to establish a clear boundary for prohibited treatment. That boundary, I felt, had to be at that point where cruel and unusual punishment or treatment began. Turning to the Beaver Legal Brief, I characterized it as an incompetent product of legal analysis, and I urged him not to rely on it.

I also drew Mr. Haynes's attention to the Secretary's hand-written comment on the bottom of the memo, which suggested that detainees subjected to forced standing (which was limited to four hours) could be made to stand longer since he usually stood for longer periods during his work day. [5] Although, having some sense of the Secretary's verbal style, I was confident the comment was intended to be jocular, defense attorneys for the detainees were sure to interpret it otherwise. Unless withdrawn rapidly, the memo was sure to be discovered and used at trial in the military commissions. The Secretary's signature on the memo ensured that he would be called as a witness. I told Mr. Haynes he could be sure that, at the end of what would be a long interrogation, the defense attorney would then refer the Secretary to the notation and ask whether it was not intended as a coded message, a written nod-and-a-wink to interrogators to the effect that they should not feel bound by the limits set in the memo, but consider themselves authorized to do what was necessary to obtain the necessary information. The memos, and the practices they authorized, threatened the entire military commission process.

Mr. Haynes listened attentively throughout. He promised to consider carefully what I had said.

I had entered the meeting believing that the December 2nd Memo was almost certainly not reflective of conscious policy but the product of oversight -- a combination of too much work and too little time for careful legal analysis or measured consideration. I left confident that Mr. Haynes, upon reflecting on the abuses in Guantanamo and the flaws in the December 2nd Memo and underlying legal analysis, would seek to correct these mistakes by obtaining the quick suspension of he authority to apply the interrogation techniques.

21 Dec 02 - 3 Jan 03

On these dates I left for and returned from Miami on a family Christmas vacation. During this time, I learned via emails from RADM Lohr that he had brought the allegations of abuse to VADM Kevin Green, the Deputy Chief of Naval Operations for Plans, Policy, and Operations, and COL Manny Supervielle, SOUTHCOM SJA. I returned to the office on Friday, January 3, 2003.

6 Jan 03

NCIS Director Brant informed me that the detainee mistreatment in Guantanamo was continuing and that he had not heard that the December 2nd Memo had been suspended or revoked. This came as an unpleasant surprise since I had been confident that the abusive activities would have been quickly ended once I brought them to the attention of higher levels within DOD. I began to wonder whether the adoption of the coercive interrogation techniques might not have been the product of simple oversight, as I had thought, but perhaps a policy consciously adopted --albeit through mistaken analysis -- and enjoying at least some support within the Pentagon bureaucracy. To get them curbed I would have to develop a constituency within the Pentagon to do so.

I met with Under Secretary of the Navy Susan Livingstone and informed her, for the first time, of the evidence of abuse in Guantanamo, my legal and policy views, and my various meetings and conversations on the matter. I recommended an NCIS brief, which she accepted. That afternoon, Director Brant and other NCIS agents briefed her along the same lines of the brief they provided me on December 18th. I attended the brief. This would be the first of almost daily conversations or meetings that I had with Under Secretary Livingstone on this issue. Her views and mine coincided, and she provided great support during this entire period.

On this and the following day, I reviewed the product of research that had been begun almost immediately following the news of the detainee abuse, in particular a memorandum of law prepared under RADM Lohr's direction by Navy JAG attorneys. (Att 5) In addition, I reviewed a letter (Att 6) dated December 26, 2002, from Kenneth Roth, the Executive Director of Human Rights watch, a prominent human rights organization, to President Bush. The letter, which contained legal analysis I considered largely accurate, had been cited in a Washington Post article published on the same date' (Att 7) Both the Letter and the article were confirmation that the accounts of prisoner abuse had begun to leak out, as they were bound to do.

8 Jan 03

I met in my office with Jaymie Durnan, a Special Assistant to Secretary Rumsfeld and Deputy Secretary Paul Wolfowitz. Showing him the December 2nd Memo, I informed Mr. Durnan about the alleged prisoner abuse at Guantanamo, the repugnance that NCIS and other U.S. officials at the base felt about the practice, and my view that the mistreatment was illegal and contrary to American values. In addition to their unlawfulness, the abusive practices --once they became known to the American public and military -- would have severe policy repercussions: the public and military would both repudiate them; public support for the War on Terror would diminish; there would be ensuing international condemnation; and, as a result, the United States would find it more difficult not only to expand the current coalition, but even to maintain the one that existed. The full political consequences were incalculable but certain to be severe. I also informed Mr. Durnan of my December 20th conversation with Mr. Haynes and my surprise to learn, following my return from vacation, that the interrogation authorities had not been suspended in the intervening time. I told him I would be seeing Mr. Haynes again the following day and asked for his help in reversing the policy.

Mr. Durnan expressed serious concern over the matter and promised to look into it at his level. He asked for a copy of the December 2nd Memo, which I had delivered to him later that same day (Att B) along, I believe, with the Navy JAG legal memo. He also asked that I keep him informed of my conversation with Mr. Haynes.

9 Jan 03

I met with Mr. Haynes in his office again that afternoon. He was accompanied by an Air Force major whose name I cannot recall. I told him that I had been surprised to learn upon my return from vacation that the detainee abuses appeared to be continuing and that, from all appearances, the interrogation techniques authorized by the December 2nd Memo were still in place. I also provided him a draft copy of the Navy JAG legal memo.

Mr. Haynes did not explain what had happened during the interval, but said that some U.S. officials believed the techniques were necessary to obtain information from the few Guantanamo detainees who, it was thought, were involved in the 9/11 attacks and had knowledge of other al Qaeda operations planned against the United States. I acknowledged the ethical issues were difficult. I was not sure what my position would be in the classic "ticking bomb" scenario where the terrorist being interrogated had knowledge of, say, an imminent nuclear weapon attack against a U.S. city. If I were the interrogator involved, I would probably apply the torture myself, although I would do so with full knowledge of potentially severe personal consequences. But I did not feel this was the factual situation we faced in Guantanamo, and even if I were willing to do this as an individual and assume the personal consequences, by the same token I did not consider it appropriate for us to advocate for or cause the laws and values of our nation to be changed to render the activity lawful. Also, the threats against the United States, came from many directions and had many different potential consequences. Does the threat by one common criminal against the life of one citizen justify torture or lesser mistreatment? If not, how many lives must the threat jeopardize? Where does one set the threshold, if at all? In any event, this was not for us to decide in the Pentagon; these were issues for national debate.

My recollection is that I raised the following additional points with Mr. Haynes:

• The December 26th Washington Post article recounting allegations of prisoner mistreatment at Guantanamo and elsewhere demonstrated that the discontent of those in the military opposed to the practice was leaking to the media, as was inevitable. Even if one wanted to authorize the U.S. military to conduct coercive interrogations, as was the case in Guantanamo, how could one do so without profoundly altering its core values and character? Societal education and military training inculcated in our soldiers American values adverse to mistreatment. Would we now have the military abandon these values altogether? Or would we create detachments of special guards and interrogators, who would be trained and kept separate from the other soldiers, to administer these practices?
• The belief held by some that Guantanamo's special jurisdictional situation would preclude a U.S. court finding jurisdiction to review events occurring there was questionable at best. The coercive interrogations in Guantanamo were not committed by rogue elements of the military acting without authority, a situation that may support a finding of lack of jurisdiction. In this situation, the authority and direction to engage in the practice issued from and was under review by the highest DOD authorities, including the Secretary of Defense. What precluded a federal district court from finding jurisdiction along the entire length of the chain of command?
• The British Government had applied virtually the same interrogation techniques against Irish Republican Army detainees in the '70s. Following an exhaustive investigation in which the testimony of hundreds of witnesses was taken, the European commission of Human Rights found the interrogation techniques to constitute torture. In Ireland v. United Kingdom, [7] a later lawsuit brought by the victims of the interrogation techniques, the European Court of Human Rights in a split decision held that the techniques did not rise to the level of torture, but did amount to "cruel, inhuman, and degrading" treatment, a practice that was equally in violation of European law and international human rights standards. The court awarded damages. Ultimately, the then-Prime Minister, standing in the well of Parliament, admitted that the government had used the techniques, forswore their further use, and announced further investigations and remedial training. This case was directly applicable to our situation for two reasons. First, because of the similarity between U.S. and U.K. jurisprudence, the case helped establish that the interrogation techniques authorized in the December 2nd Memo constituted, at a minimum, cruel, inhuman, and degrading treatment. Further, depending on circumstances, the same treatment may constitute torture -- treatment that may discomfit a prizefighter may be regarded as torture by a grandmother. Second, at present, British Prime Minister Tony Blair had lost significant electoral support and was under heavy political pressure because of his staunch support for the United States in the War on Terror and Operation Iraqi Freedom. What would be the impact on Blair's political standing upon the disclosure that his partner, the United states, was engaged in practices that were unlawful under British and European law? Could the British Government be precluded from continuing to cooperate with us on aspects of the War on Terror because doing so would abet illegal activity? Besides Blair, what impact would our actions have with respect to the willingness of other European leaders, all of whom are subject to the same law, to participate with us in the War on Terror?
• A central element of American foreign policy for decades had been our support for human rights. By authorizing and practicing cruel, inhuman, and degrading treatment, we were now engaged in the same sort of practices that we routinely condemned. Had we jettisoned our human rights policies? If not, could we continue to espouse them given our inconsistent behavior?

Mr. Haynes said little during our meeting. Frustrated by not having made much apparent headway, I told him that the interrogation policies could threaten Secretary Rumsfeld's tenure and could even damage the Presidency. "Protect your client," I urged Mr. Haynes.

After the meeting, I reported back to Mr. Durnan by email. (Att 9) Two sentences summarized my view of the meeting. Speaking of Mr. Haynes, I wrote: "He listened as he always does -- closely and intently to my arguments and promised to get back to me, but didn't say when. I've got no inkling what impact, if any, I made."

10 Jan 03

I met in my office with CAPT Jane Dalton, JAGC, USN, the Legal Adviser to the Chairman of the Joint Chiefs of Staff, who had called for the meeting at Mr. Haynes's request. I reviewed the December 2nd Memo with her, making many of the same points that I had made in my previous conversations with Mr. Haynes, Mr. Durnan, and others.

Also as a result of action by Mr. Haynes, I presented my views and objections at an afternoon meeting attended by the other service General Counsel and the senior Judge Advocates General. My arguments were similar to those discussed above. I reported both meetings in a brief email to Mr. Durnan. (Att 10)

I regarded Mr. Haynes's initiative to schedule the above two meetings as a positive development and a sign that he not only took my arguments seriously, but that he possibly agreed with some or many of them. Later that afternoon, he called to say that Secretary Rumsfeld was briefed that day on my concerns. Mr. Haynes suggested that modifications to the interrogation policy were in the offing and could come as early as next week. I reported this to Mr. Durnan in an email. (Att 11)

13 Jan 03

In separate meetings, I met alone with Air Force General Counsel Mary Walker, Army General Counsel Steve Morello, and DOD Deputy General Counsel Dan Dell'Orto. The arguments I raised were roughly the same ones I had made to Mr. Haynes in ur earlier conversations.

14 Jan 03

I met with VADM Kevin Green and gave him a full account of my concerns and objections, as well as of my meetings and conversations on the issues.

15 Jan 03

Uncertain whether there would be any change to the interrogation policy and dissatisfied at what I viewed as the slow pace of the discussions, I prepared a draft memorandum addressed to Mr. Haynes and CAPT Dalton (Att 12) providing my views on the JTF-170 October 11, 2002, request (contained as part of the December 2nd Memo) requesting authority to engage in the counter-resistance interrogation techniques. My memo: (a) stated that the majority of the proposed category II and all of the category III techniques were violative of domestic and international legal norms in that they constituted, at a minimum, cruel and unusual treatment and, at worst, torture; (b) rejected the legal analysis and recommendations of the Beaver Legal Brief; and (c) "strongly non-concurred" with the adoption of the violative interrogation techniques. The memo further cautioned that even "the misperception that the U.S. Government authorizes or condones detention or interrogation practices that do not comply with our domestic and international legal obligations ... probably will cause significant harm to our national legal, political, military and diplomatic interests."

I delivered the memo in draft form to Mr. Haynes's office in the morning. In a telephone call, I told, Mr. Haynes that I was increasingly uncomfortable as time passed because I had not put down in writing my views on the interrogation issues. I said I would be signing out the memo late that afternoon unless I heard definitively that use of the interrogation techniques had been or was being suspended. We agreed to meet later that day.

In the later meeting, which Mr. Dell'Orto attended, Mr. Haynes returned the draft memo to me. He asked whether I was not aware about how he felt about the issues or the impact of my actions. I responded that I did not and, with respect to his own views, I had no idea whether he agreed totally with my arguments, disagreed totally with them, or held an intermediate view. Mr. Haynes then said that Secretary Rumsfeld would be suspending the authority to apply the techniques that same day. I said I was delighted and would thus not be signing out my memo. Later in the day and after our meeting, Mr. Haynes called to confirm that Secretary Rumsfeld had suspended the techniques. I reported the news widely, including to the Under Secretary (Att 13) and VADM Green (Att 14) .

11 Jan 03

Secretary Rumsfeld, through General Counsel Haynes, established a Working Group headed by Air Force General counsel Mary Walker to develop recommendations by January 29 on detainee interrogations. (Att 15) The sub-issues associated with the tasking were divided among the services. Navy OGC was assigned the task to develop a paper on the applicability of the 5th, 8th, and 14th Amendments to detainee interrogations. Early in this process, the Working Group was advised that the Office of Legal Counsel (OLC) in the Department of Justice would be developing a comprehensive legal memorandum that was to serve as definitive guidance on the issues addressed by it. [9] I appointed Lt Col Rick Schieke to serve as the OGC representative to the Working Group. [10]

I met with NCIS Chief Psychologist Dr. Michael Gelles and senior NCIS Special Agent Mark Fallon. In the meeting, I mentioned my concern that simple opposition to the use of the coercive interrogation techniques may not be sufficient to prevail in the impending bureaucratic reexamination of which procedures to authorize. We couldn't fight something with nothing; was there anything in the scientific or academic literature that would support the use of non-coercive interrogation techniques? Dr. Gelles replied that there was. Most behavioral experts working in the field, he said, viewed torture and other less coercive interrogation tactics not only as illegal, but also as ineffective. The weight of expert pinion held that the most effective interrogation techniques to employ against individuals with the psychological profile of the al Qaeda or Taliban detainees were "relationship based," that is, they relied on the mutual trust achieved in the course of developing a non-coercive relationship to break down the detainee's resistance to interrogation. Coercive interrogations, said Dr. Gelles, were counter-productive to the implementation of relationship-based strategies.

At my direction, Dr. Gelles began the preparation of two memos, the first to be a summary of the thesis intended to be injected as quickly as possible into the Working Group and inter-agency deliberations, and the second a comprehensive discussion of the subject. This actually would lead to the preparation of three memoranda, which are identified below on the dates they were circulated.

18 Jan -29 Jan 03

This was the principal period for the Working Group activities. Sometime during this period, OLC delivered its draft legal memo on interrogation techniques (the "OLC Memo") to Air Force GC Walker, the chairperson of the Group. Although the lengthy memo covered many issues and did so with seeming sophistication, I regarded it as profoundly in error in at least two central elements. First, the memo explicitly held that the application of cruel, inhuman, and degrading treatment to the Guantanamo detainees was authorized with few restrictions or conditions. This, I felt, was a clearly erroneous conclusion that was at variance with applicable law, both domestic and international, and trends in constitutional jurisprudence, particularly those dealing with the 8th Amendment protections against cruel and unusual punishment and 14th Amendment substantive due process protections that prohibited conduct "shocking to the conscience." And second, the memo espoused an extreme and virtually unlimited theory of the extent of the President's commander-in-chief authority. A key underpinning to the notion that cruel treatment could be applied to the detainees, the OLC formulation of the commander-in-chief authority was wrongly articulated because it failed to apply the Youngstown Steel test to the Guantanamo circumstances. If applied, the test would have yielded a conclusion that the commander-in-chief authority was probably greatly attenuated in the non-battlefield Guantanamo setting. In summary, the OLC memo proved a vastly more sophisticated version of the Beaver Legal Brief, but it was a much more dangerous document because the statutory requirement that OLC opinions are binding provided much more weight to its virtually equivalent conclusions.

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

-- Hamdan v. Rumsfeld, Secretary of Defense, et al., Decided 6/29/06 by The Supreme Court of the United States

Soon upon receipt of the OLC Memo, the Working Group leadership began to apply its guidance to shape the content of its report. As illustrated below, contributions from the members of the Working Group, including OGC, began to be rejected if they did not conform to the OLC guidance.

30 Jan 03

In an email chain initiated by Ms. Walker, she objected to an effort by the OGC representative, which I had directed, to insert 8th Amendment analysis into the Working Group report. In my reply I sought to alert her to the mistakes in the OLC Memo's legal analysis and to its unreliability as guidance. I wrote: "The OLC draft paper is fundamentally in error: it spots some of the legal trees, but misses the constitutional forest. Because it identifies no boundaries to action -- more, it alleges there are none -- it is virtually useless as guidance as now drafted and dangerous in that it might give some a false sense of comfort." [11] Ms. Walker's response dismissed my warning: "I disagree and moreover I believe DOD GC disagrees. " (Three emails at Att 16)

Even before this date, it became evident to me and my OGC colleagues [12] that the Working Group report being assembled would contain profound mistakes in its legal analysis, in large measure because of its reliance on the flawed OLC Memo. In addition, the speed of the Working Group process and the division of responsibility among the various Services made it difficult to prepare detailed comments or objections to those sections not assigned to OGC. My intent at this stage was to review the final draft report when it was circulated for clearance but, based on the unacceptable legal analysis contained in the early draft versions that were likely to be retained in .he final version, I anticipated that I would non-concur with detailed comments.

4 Feb 03

Under a cover memo entitled "Proposed Alternative Approach to Interrogations," I circulated a January 31, 2003 NCIS memo entitled "An Alternative Approach to the Interrogation of Detainees at Guantanamo Bay, Cuba." This was the first of the three NCIS memos described above in the narrative entry above for 17 Jan 03. (Att 17)

Mr. Haynes convened a meeting of the Working Group principals. I believe that it was at this meeting that Mr. Haynes asked the group's opinion whether a matrix of interrogation techniques (Att 18), which used a green/yellow/red light system to indicate whether the individual technique was in conformity with U.S. law, was correct and approved by the individuals in the room. I indicated that it was my belief that the matrix conformed to law, and I believe that everyone else in the meeting also indicated the same view.

6 Feb 03

OGC Deputy General Counsel Bill Molzahn and I met in my office with OLC Deputy Director John Yoo. The principal author of the OLC Memo, Mr. Yoo glibly defended the provisions of his memo, but it was a defense of provisions that I regarded as erroneous. Asked whether the President could order the application of torture, Mr. Yoo responded, "Yes." When I questioned this, he stated that his job was to state what the law was, and also stated that my contrary view represented an expression of legal policy that perhaps the administration may wish to discuss and adopt, but was not the law. I asked; "Where can I have that discussion?" His response: "I don't know. Maybe here in the Pentagon?"

I circulated a second version of the January 31st NCIS interrogation memo described above in the narrative entry for 4 Feb 03. This memo, the second of three memos described above in the narrative entry of 17 December 03, differed from the first only in that it contained an 11-page classified attachment that addressed the issue in much greater detail. (Att 19)

10 Feb 03

At some point in February, and most probably on this date, I met with Mr. Haynes at his request and Mr. Dell'Orto to discuss the Working Group report. I informed them that the draft report was not a quality product. It was the product of a flawed working group process and deeply flawed OLC Memo. I believe I urged him to keep the report in draft form and not finalize it. I do recall suggesting that he should take the report, thank the Working Group leadership for its efforts, and then stick the report in a drawer and "never let it sea the light of day again."

26 Feb 03

Under a cover memo entitled "Proposed Interrogation Strategy," I circulated the third NCIS memo addressing recommended interrogation techniques. This classified paper constituted an academic treatment of the issue. (Att 20)

2 Mar 03

This is the date of the last Working Group report in OGC files. This draft was as unacceptable as prior drafts.

8 Mar 03

Mr. Haynes convened a meeting of the service General Counsel and the JAGs to discuss the Working Group process. During the course of this Saturday morning meeting, Secretary Rumsfeld entered the room. He thanked us for our work and stressed how important the issues were. He emphasized the need to ensure that the Group's recommendations were consistent with U.S. law and values.

27 Jun 03

I read in the Washington Post [13] (Att 21) that Mr. Haynes had written a letter to Sen. Patrick Leahy declaring that it was the policy of the Department of Defense, in essence, never to apply torture or inflict cruel, inhuman, or degrading treatment on its prisoners or detainees. I regarded the letter (Att 22), which was dated June 25, 2003, as the perfect expression of the legal obligations binding DOD and the happy culmination of the long debates in the Pentagon as to what the DOD detainee treatment policy should be. I wrote an email to Mr. Haynes (Att 23) expressing my pleasure on his letter and stating that I was proud to be on his team.

I should note that neither I, OGC, nor -- to my knowledge -- anyone else in the DON ever received a completed version of the Working Group report. It was never circulated for clearance. Over time, I would come to assume that the report had never been finalized. [14]


The issue of detainee interrogation has three principal components: (1) the legal analysis that creates a boundary limiting interrogation tactics and techniques; (2) the policies adopted following the identification of the legal limits; and (3) the actual effects on the detainees. This is how I viewed each of these areas -- law, policy, and detainee treatment -- in the Guananamo context in the period after the events described above.

Law. To my knowledge, the two principal DOD documents that address the legal aspects of detainee interrogation are DOD GC Haynes's June 25, 2003, letter to Sen. Leahy, which I view as the definitive and appropriate statement on the legal boundaries to detainee interrogation and treatment, and the Working Group Report. Because I viewed the Report as inconsistent with the Haynes Letter, I would be concerned to the extent that the legal analysis in the Report is still regarded as valid. [15] However, since the Department of Justice has publicly announced that they have withdrawn the OLC Memo, [16] I would regard -- and I should assume DOD would also regard -- the Working Group Report that so heavily relied on the OLC Memo as no longer serving as any kind of appropriate guidance on the issues.

Policy. To my knowledge, all interrogation techniques authorized for use in Guantanamo after January 15, 2003, fell well within the boundaries authorized by law. Certainly the interrogation matrix discussed at pages 18-19 above also fell within appropriate boundaries.

Detainee Treatment. NCIS advised me, following Secretary Rumsfeld's January 15, 2003, suspension of the interrogation authorities contained in the December 2nd Memo, that the reports of detainee abuses at Guantanamo had ceased. At no subsequent time, up to and including the present, did NCIS or any other person or organization forward to me any report of further detainee abuse. Because of NCIS's demonstrated integrity and ability to detect detainee abuse at Guantanamo, I felt a high degree of confidence that the prisoner abuses at Guantanamo had indeed stopped after January 15, 2003.

Alberto J. Mora


1, JTF-Gitmo Interrogation Logs/Notes (5)

2. DOD GC Action Memo of 27 Nov 02 w/SECDEF note of 2 Dec 02 and supporting docs (S)

3. OPNAV memo N3/NSL N PM 466-02 ot 4 Nov 02 to J-5

4. RADM Lohr e-mail to Alberto Mora of 19 Dec 02 (U)

5. JAG Memo of Law of 16 Jan 03 IS)

6. Human Rights Watch ltr of 26 Dec 02 (U)

7. Washington Post article "U.S. Decries Abuse but Defends Interrogations" 26 Dec 02 (U)

8. Alberto Mora e-mail of 9 Jan 03 8:29 to Jaymie Durnan (U)

9. Alberto Mora e-mail of 9 Jan 03 4:15 to Jaymie Durnan (U)

10. Alberto Mora e-mail of 10 Jan 03 1:19 to Jaymie Durnan (U)

11. Alberta Mora e-mail of 10 Jan 03 4:53 to Jaymie Durnan (U)

12. U.S. Navy General Counsel Counter-Resistance Techniques draft memo (S)

13. Alberto Mora e-mail

14. Alberto Mora e-mail

15. Mary Walker memo to Detainee Interrogation Working Group, dtd 17 Jan 03 (S)

16. E-mails (3) between Alberto Mora and Mary Walker of 29-30 Jan 03 (U)

17. Alberto Mora memo re Proposed Alternative Approach to Interrogations, dtd 4 Feb 03 (S)

18. Matrix of Detainee Interrogation Techniques (S)

19. Alberto Mora memo re Proposed Alternative Approach to Interrogations dtd, 6 Feb 03 (S)

20. Alberto Mora memo re Proposed Interrogation Strategy, dtd 26 Feb 03 (5)

21. Washington Post article "U.S. Pledges to Avoid Torture" 27 Jun 03 (U)

22. Mr. Haynes ltr to Sen. Leahy of 25 Jun 03 (U)

23. Alberto Mora e-mail of 27 Jun 03 to Mr. Haynes (U)


1. Guantanamo Naval Base is operated by the Navy. However, tenant operations reporting through different chains of commands -- such as JTF-160 and JTF-170 -- or different agencies do not provide operational reports to the base commander. Thus, such information would not necessarily filter up to OGC or the DON Secretariat.

2. My recollection is that I was shown extracts of these interrogation logs on this date. However, OGC documents indicate that these log extracts were emailed to me on January 13, 2003.

3. Later, we would determine that this memo had been circulated by the Joint Staff to the OPNAV Staff, where it had been reviewed by a Navy captain who, on November 2, 2002, had concurred in the memo with caveats, including the need for a more detailed interagency legal and policy review. (Att 3) The memo was apparently not circulated further within the DON and had never reached my office or RADM Lohr's.

4. At this time, Secretary England's nomination to serve as Deputy Secretary of the Department of Homeland Security has been announced, and he was transitioning out of the DON. He would ultimately transfer out of the Department on January 23, 2003. This would be my only conversation with him on the issue until months later, well after his return as Navy Secretary.

5. The notation reads: "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?"

6. D. Priest, B. Gellman, "U.S. Decries Abuse but Defends Interrogations," Washington Post, p. A2 (Dec. 26, 2002).

7. Republic of Ireland v. United Kingdom, (Series A, No. 25) European Court of Human Rights (1979-80), 2 EHRR 25 (Jan. 18, 1978).

8. After a name change, it was now designated JTF GTMO.

9. By 28 C.F.R. § 0.25, the Attorney General delegated to the Office of Legal Counsel the authority to render opinions on questions of law when requested by the President or heads of executive departments pursuant to 28 U.S.C § 511-512.

10. The Working Group process generated a large volume of paper through the course of numerous meetings. I did not participate in the daily work of he group. Because its activities were well documented and a large number of participants were involved, the following narrative will focus only on the principal points of my own involvement in the process.

11. Ultimately, the Justice Department would apparently come to the same conclusion. In late June 2004, in the aftermath of the Abu Ghraib scandal -- and the separate scandal generated by the offensive reasoning in the OLC Memo and another OLC brief -- the Justice Department announced that it was withdrawing the OLC Memo. See, e.g., T. Lacy and J. Biskupic "Interrogation Memo to be Replaced," USA Today, p. A02 (June 23, 2004).

12. The DON legal leadership was united in its view that the OLC Memo was rife with mistaken legal analysis. RADM Lohr, Mr. Murphy, and BGEN Sandkuhler all shared this view. For that matter, the senior leadership among DON civilian and military attorneys shared a common view of virtually all the legal and policy issues throughout the debate on detainee interrogation. Unfortunately, because this narrative is mainly a personal account, it tends to mask the role these individuals -- including OGC Deputy General Counsel Kranz and Molzahn, Marine Corps Counsel Murphy, and NCIS Director Brant -- played in the effort to correct the mistaken interrogation policies. For example, RADM Lohr and BGEN Sandkuhler were instrumental in both the legal analysis of the interrogation issue and the advocacy effort, not only within the Navy and Marine Corps but also among the other military services, to ensure that the interrogation techniques conformed to law.

13. P. Slevin, "U.S. Pledges to Avoid Torture," Washington Post, p. A11 (June 27, 2003).

14. I learned otherwise only on May 12, 2004, when I called Air Force Deputy General Counsel Dan Ramos to advise him that I had heard references to the report in televised congressional hearings on the Abu Ghraib scandal. Mr. Ramos informed that it in fact had been signed out and briefed to SOUTHCOM Commander GEN Hill and JTF GTMO Commander MGEN Miller in March or April 2003.

15. Apparently, it was also used as the legal analysis informing the Secretary of Defense's April 2003 renewed guidance memo to JTF GTMO on interrogation techniques (of which I was also not aware until May 2004).

16. See, footnote 11 above.
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Postby admin » Sat Nov 21, 2015 2:54 am

An Open Letter to President Bush on the Torture of Al-Qaeda Suspects
Human Rights Watch
December 27, 2002

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 but 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 international law.

The willful torture or inhuman treatment of prisoners-of-war or other detainees, including "willfully 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.


Kenneth Roth

Executive Director

Cc: Colin Powell, Secretary of State

Donald Rumsfeld, Secretary of Defense

Condoleezza Rice, National Security Advisor

Kenneth Roth is executive director of Human Rights Watch.
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Postby admin » Sat Nov 21, 2015 2:54 am

British Panel Doubts U.S. on Torture
New York Times
July 21, 2008

LONDON (Reuters) — Britain should no longer rely on assurances by the United States that it does not torture terrorism suspects, an influential parliamentary committee said in a report released Sunday.

Britain had previously taken those assurances at face value, but after the C.I.A. acknowledged using waterboarding techniques on three detainees, Britain should change its stance, according to the report, by the Foreign Affairs Committee of the House of Commons.

The foreign secretary, David Miliband, told Parliament in April that the technique, in which suspects are tied down and water is poured over their hooded faces to simulate drowning, amounted to torture.

“Given the clear differences in definition, the U.K. can no longer rely on U.S. assurances that it does not use torture, and we recommend that the government does not rely on such assurances in the future,” the report said.
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Postby admin » Sat Nov 21, 2015 2:55 am

US torture claims are unreliable: British lawmakers
July 19th, 2008

The British government should no longer accept US assurances that it does not use torture, a parliamentary oversight committee said on Sunday in a wide-ranging report looking at London’s human rights policy.

Ministers have previously taken at face value statements from their US counterparts, including Secretary of State Condoleezza Rice and President George W. Bush, that Washington does not resort to such practices.

But the cross-party foreign affairs committee said that stance should be abandoned given admissions from the US director of national intelligence, Michael McConnell, that “water-boarding” had been used on terror suspects.

Foreign Secretary David Miliband has told parliament on two occasions this year that the practice, which simulates drowning during interrogation, amounts to torture.

Miliband’s position has “serious implications” for government policy, the committee said in its 214-page Human Rights Annual Report 2007-8.

“We conclude that, given the clear differences in definition, the UK can no longer rely on US assurances that it does not use torture, and we recommend that the government does not rely on such assurances in the future,” it added.

Britain is a signatory to a United Nations convention that prevents the extradition of suspects to countries where torture is used. If adopted, a change in approach could affect such transfers.

The committee also called for Britain to carry out an “exhaustive analysis” of US government interrogation techniques and seek guarantees about whether US flights carrying terror suspects used British airspace or airports.

Earlier this year, the United States admitted that two “rendition” flights landed on Diego Garcia, a British overseas territory in the Indian Ocean where there is a US air base.

Britain, whose policy is not to allow such transfers where there is a risk of torture, had earlier accepted assurances that its territory had not been used for the extra-judicial transfer of suspected extremists.

Such flights should not use British territory or airspace, even if no detainees were on board, the committee said.

Elsewhere, the committee urged an investigation into claims that six British nationals were detained and tortured by Pakistan’s Inter-Services Intelligence (ISI) agency and interrogated by British security agents.

The British government has denied that it has “outsourced” interrogation to extract information for court proceedings or counter-terrorism operations.
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Postby admin » Sat Nov 21, 2015 2:59 am

Guantanamo Bay from Part 2, Human Rights Annual Report 2007
by Foreign & Commonwealth Office, British Government

Guantanamo Bay

The detention facility at Guantanamo Bay gives rise to a number of human rights issues relating to the detention and treatment of terrorist suspects. As part of our regular discussions with the US government on detainee-related issues, we urge them to conduct the handling of detainees at Guantanamo Bay in accordance with their international legal obligations. This is consistent with our foreign policy objectives, preventing further terrorist attacks, addressing the circumstances that might generate terrorism and -- importantly -- upholding respect for human rights and the rule of law.

It has long been our position that the circumstances in which detainees are currently held indefinitely at Guantanamo Bay are unacceptable. We firmly believe that the detention facility at Guantanamo Bay should close. A longer-term solution needs to be found .We welcome President Bush's commitment to close the detention facility as soon as practicable and the steps taken by the US towards this goal.

However, international bodies, non-governmental organisations (NGOs) and the media continue to criticise the treatment of detainees at Guantanamo Bay, although many (including the Foreign Affairs Committee) have noted the improvement in conditions at the camp. While moving towards closure of the facility, it is vital that the US continues to engage with bodies such as the International Committee of the Red Cross, the UN and others on the issue of Guantanamo Bay.

We welcome US government statements that have made clear its opposition to torture, and the cruel, inhuman and degrading treatment of terrorist suspects. These include a categorical statement by President Bush on 6 September 2006 that the US does not practise torture. We will continue to discuss detainee-related issues with the US government and to raise humanitarian and human rights concerns about detentions at Guantanamo Bay where necessary.

Of continuing concern is the nature of any prosecutions that might be brought against some of those detained at Guantanamo Bay, and ensuring their right to a fair trial.

We have studied the US Military Commissions Act 2006 and its accompanying manual of regulations for military commissions. While there are areas where we continue to seek clarity regarding the precise impact of the act, it does represent a step forward in meeting international legal standards for the detention and trial of those accused of terrorism offences. Nevertheless, we do have outstanding concerns about a number of aspects of the act. We have raised these with the US, focusing in particular on our concerns related to habeas corpus and the treatment of those acquitted by military commissions, and will continue to do so. However, the military commission process has long been delayed as a result of numerous congressional and legal challenges in the US. A US Supreme Court decision is expected later in 2008.

The UK welcomes recent steps taken by the US government to reduce the numbers of those detained at Guantanamo Bay and to move towards the closure of the detention facility. However, we also recognise that any consideration of the future of Guantanamo Bay and those detained there will raise further human rights issues.

A proper balance must be secured between handling the security threat posed by those who might be released and respecting the human rights of those individuals -- including if they are to return to their countries of nationality. The US makes it clear that they will not transfer a detainee if it is "more likely than not" that they will be tortured on return. The US Department of Defense states that of the approximately 275 remaining detainees at Guantanamo Bay, around 80 are eligible for transfer or release but cannot be returned to their country of nationality due to human rights concerns.

UK residents

We said in the 2006 annual report on human rights that no British nationals had been held at Guantanamo Bay since the return to the UK of the last four in January 2005. This remains the case. In March 2006, the then foreign secretary had also agreed to make representations to seek the return from Guantanamo Bay of Iraqi national Mr. Bisher Al Rawi. This was based on the particular circumstances in Mr. Al Rawi's case. Following discussions with the US authorities, Mr. Al Rawi returned to the UK on 30 March 2007.

However, there were still five individuals detained at Guantanamo with links to the UK, as former UK residents who had been granted refugee status, indefinite leave or exceptional leave to remain prior to their detention. Further to recent steps taken by the US government to reduce the number of detainees at Guantanamo Bay, which included an increasing emphasis on engagement with third countries over their transfer and resettlement in August 2007 the UK decided that requesting the release and return to the UK of the five remaining former UK residents was an appropriate way to take action to help expedite the closure of Guantanamo, and to reduce the numbers of those detained there. Three of the five were returned to the UK on 19 December 2007 (see text box on page 14)


We believe that Guantanamo Bay should be closed. In light of our ongoing aim to reduce the numbers of those detained at Guantanamo Bay and to help to bring about its closure, we have recently reviewed our approach to five individuals currently detained there who have links to the UK as former lawful residents. We decided to request the release and return of these five individuals: Mr. Shaker Aamer, Mr. Jamil El Banna, Mr. Omar Deghayes, Mr. Binyam Mohamed and Mr. Abdennour Sameur. On 7 August 2007, the Foreign Secretary, David Miliband, wrote to the US Secretary of State, Condoleezza Rice, to formally make this request. It was made clar that we hope this decision will help to contribute to the closure of the detention facility. Following detailed and constructive discussions with the U.S., considering the circumstances of each individual case, three of the five men -- Mr. El Banna, Mr. Deghayes, and Mr. Sameur -- were returned to the UK on 19 December.

The U.S. government has expressed significant security concerns inr egard to the other two men covered by the original request -- Mr. Aamer and Mr. Mohamed. They have so far declined the request for the release and return of Mr. Aamer and we are no longer in active discussions regarding his transfer to the UK. However, should the U.S. position change, our request for his release and return to the UK remains open. We are still discussing the case of Mr. Mohamed, although again the U.S. is not inclined to agree to his release and return. We remain in close contact with the families of the individuals and their legal representatives.


The terms "rendition" and "extraordinary rendition" have yet to attain a universally accepted meaning, other than the transfer of an individual between jurisdictions outside normal legal processes such as extradition, deportation, removal or exclusion. Rendition has been used as a law enforcement and judicial tool in the US for many decades. Many commentators have used the term extraordinary rendition to mean the extra-judicial transfer of persons from one jurisdiction to another specifically for the purposes of detention and interrogation outside the normal legal system, giving rise to an increased risk of torture or cruel, inhuman or degrading treatment. It is this practice that has given rise to concern and public debate in recent years.

UK government policy on the use of UK airports or airspace during rendition operations by other states is clear. We have not approved and will not approve a policy of facilitating the transfer of individuals through the UK to places where there are substantial grounds to believe they would face a real risk of torture. The UK unreservedly condemns torture whenever and wherever it occurs. The UK abides by its commitments under international law and expects all countries to comply with their international legal obligations. All our efforts to counter terrorism are designed in accordance with our firm commitment to protecting and promoting human rights.

The US informed us on 15 February 2008 of two occasions in 2002 when a US plane with a single detainee aboard refuelled at the US facility in the British Indian Ocean Territory of Diego Garcia. The foreign secretary made a statement in parliament on 21 February 2008 expressing concern and disappointment at the news and its late emergence, reaffirming UK policy and outlining work on the details and implications of this information. He also spoke on 20 February 2008 to Secretary Rice, who underlined the firm US understanding that there will be no rendition through the UK, UK airspace or Overseas Territories without express British government permission. We will grant permission only if we are satisfied that the rendition would accord with UK law and our international obligations.
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