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Executive Branch Memoranda on Status and Permissible Treatment of Detainees

Published online by Cambridge University Press:  27 February 2017

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Type
Contemporary Practice of the United States Relating to International Law
Information
American Journal of International Law , Volume 98 , Issue 4 , October 2004 , pp. 820 - 831
Copyright
Copyright © American Society of International Law 2004

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References

1 See Murphy, Sean D. Contemporary Practice of the United States, 98 AJIL 591 (2004)Google ScholarPubMed.

2 Many of the memoranda and materials relating to them are available on the Internet site of George Washington University’s National Security Archive, <http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/index.htm> .

3 See Murphy, Sean D. Contemporary Practice of the United States, 96 AJIL 475 (2002)Google ScholarPubMed.

4 Memorandum from Deputy Assistant Attorneys General John Yoo and Patrick Philbin to Dep’t of Defense General Counsel Haynes, William J. II. (Dec. 28, 2001)Google Scholar.

5 See Murphy, Sean D. Contemporary Practice of the United States, 96 AJIL 481 (2002)Google ScholarPubMed & 98 AJIL 188 (2004); see also Rasul v. Bush, 124 S.Ct. 2686 (2004).

6 Memorandum from the Secretary of Defense Donald A. Rumsfeld to the Chairman of the Joint Chiefs of Staff (Jan. 19, 2002)Google Scholar.

7 Cable from the Chairman of the Joint Chiefs of Staff to U.S. Military Unified Commands and Services (Jan. 21, 2002)Google Scholar.

8 Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 [hereinafter Third Geneva Convention].

9 18 U.S.C. §2441 (2000). The War Crimes Act provides that it is a criminal offense to commit acts that violate the provisions of any of several treaties governing the laws of war.

10 Memorandum from Assistant Attorney General Bybee, Jay S. to White House Counsel Gonzales, Alberto R. and Dep’t of Defense General Counsel Haynes, William J. II. at 5 (Jan. 22, 2002)Google Scholar [hereinafter Bybee Memorandum (Jan. 22, 2002)].

11 Id. at 6.

12 Id. at 9–10. The four basic criteria appear in the Third Geneva Convention, supra note 8, Art. 4(A)(2).

13 Bybee Memorandum (Jan. 22, 2002), supra note 10, at 11–13.

14 Id at 13–22.

15 Id. at 23.

16 Id. at 24–25.

17 Id. at 28–29.

18 Id. at 29–30.

19 Id. at 30–32.

20 Id. at 32–37.

21 Draft Memorandum from White House Counsel Alberto R. Gonzales to President George W. Bush (Jan. 25, 2002).

22 Draft Memorandum from Secretary of State Colin Powell to White House Counsel Gonzales, Alberto R. (Jan. 26, 2002)Google Scholar [hereinafter Powell Memorandum].

23 Letter from Attorney General John Ashcroft to President Bush, George W. (Feb. 1, 2002)Google Scholar.

24 Memorandum from William H. Taft IV to White House Counsel Alberto R. Gonzales (Feb. 2, 2002); see also Smith, R. Jeffrey, Lawyer for State Dept. Disputed Detainee Memo, Wash. Post, June 24, 2004 Google Scholar, at A7 (reporting that a letter from Taft to the Justice Department described OLC’s legal advice as “seriously flawed” and incorrect as well as incomplete,” and that classified memoranda by senior lawyers in the Air Force, Army, Marine Corps, and Navy expressed similar views).

25 Powell Memorandum, supra note 22, at 2–3.

26 Final Report of the Independent Panel to Review DoD Detention Operations 33–34 (Aug. 24, 2004),at <http://www.dod.gov/news/Aug2004/d20040824finalreport.pdf>>Google Scholar [hereinafter Schlesinger Report]. In May 2004, Secretary of Defense Rumsfeld appointed an independent commission of experts, chaired by former Secretary of Defense James Schlesinger, to review all the materials relating to the allegations of abuse of detainees, and to provide advice on “the cause of the problems and what should be done to fix them.” See Memorandum from Secretary of Defense Rumsfeld to Schlesinger, James R. Brown, Harold, Fowler, Tillie K., and Horner, Charles A. (May 12, 2004). This memorandum and other materials relating to the Schlesinger Report may be found at <http://www.dod.gov/news/detainee_investigations.html>>Google Scholar .

27 Third Geneva Convention, supra note 8, Arts. 4(A)(1), (3).

28 Memorandum from Assistant Attorney General Bybee, Jay S. to White House Counsel Gonzales, Alberto R. 2 (Feb. 7, 2002)Google Scholar [hereinafter Bybee Memorandum (Feb. 7, 2002)].

29 Third Geneva Convention, supra note 8, Art. 4(A)(2).

30 Bybee Memorandum (Feb. 7, 2002), supra note 28, at 2.

31 Id. at 3.

32 Id.

33 Id. at 4–7.

34 Third Geneva Convention, supra note 8, Art. 5.

35 Bybee Memorandum (Feb. 7, 2002), supra note 28, at 7–8.

36 Memorandum from President Bush, George W. to the Vice President, the Secretaries of State and Defense, the Attorney General, and Other Officials 1–2 (Feb. 7, 2002)Google Scholar.

37 Id. at 2.

38 384 U.S. 436 (1966). In Miranda, the Supreme Court decided that the Fifth Amendment of the U.S. Constitution (which provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself”) required that persons taken into custody be given certain warnings and be informed of their right to counsel.

39 Memorandum from Assistant Attorney General Bybee, Jay S. to Dep’t of Defense General Counsel Haynes, William J. II, at 4–6 (Feb. 26, 2002)Google Scholar.

40 Id. at 6–23.

41 Id. at 23–25.

42 Id. at 27.

43 See Dep’t of Defense News Release on DOD Provides Details on Interrogation Process (June 22, 2004), at <http://www.defenselink.mil/releases/2004/nr20040622–0930.html>>Google Scholar .

44 U.S. Dep’t of the Army, Intelligence Interrogation, ch. 3 (Field Manual 34–52, Sept. 28, 1992). The manual has been periodically revised; unlike the current version, the prior version authorized interrogators to control the lighting, heating, food, clothing, and shelter given to detainees, albeit “within the limits of the Geneva and Hague Conventions, as well as the standards of conduct outlined in the [Uniform Code of Military Justice].” See U.S. Dep’t of the Army, Intelligence Interrogation, ch. 3 (Field Manual 34–52, May 8, 1987).

45 Letter from Deputy Assistant Attorney General Yoo, John C. to White House Counsel Gonzales, Alberto R. (Aug. 1, 2002)Google Scholar.

46 Memorandum from Assistant Attorney General Bybee, Jay S. to White House Counsel Gonzales, Alberto R. Regarding Standards of Conduct for Interrogation Under 18 U.S.C. §§2340–2340A (Aug. 1, 2002)Google Scholar [hereinafter Bybee Memorandum (Aug. 1, 2002)].

47 Id. at 16.

48 Id. at 14–22

49 18 U.S.C. §§2340–2340A (2000).

50 Bybee Memorandum (Aug. 1, 2002), supra note 46, at 2–13.

51 Id. at 13.

52 Id. at 27–31.

53 Id. at 31–39.

54 Id. at 39.

55 Id. at 39–46.

56 Id. at 46.

57 Memorandum from Major General Michael Dunlavey to Commander of U.S. Southern Command (Oct. 11, 2002)Google Scholar [hereinafter Dunlavey Memorandum].

58 Schlesinger Report, supra note 26, at 35.

59 Dunlavey Memorandum, supra note 57, enclosure 1, at 1–2 (the requested interrogation techniques were described in an enclosed memorandum, also dated October 11, from Lieutenant Colonel Jerald Phifer to General Dunlavey).

60 Id. at 2–3.

61 Memorandum from Staff Judge Advocate Diane E. Beaver, Commander of Joint Task Force 170, Guantanamo Bay, Cuba, on Legal Review of Aggressive Interrogation Techniques (Oct. 11, 2002)Google Scholar; Memorandum from Staff Judge Advocate Beaver, Diane E. Commander of Joint Task Force 170, Guantanamo Bay, Cuba, on Legal Brief on Proposed Counter–resistance Strategies (Oct. 11, 2002)Google Scholar.

62 Memorandum from General Hill, James T. Commander of U.S. Southern Command, to Chairman of the Joint Chiefs of Staff (Oct. 25, 2002)Google Scholar.

63 Id.

64 Id.

65 Memorandum from Dep’t of Defense General Counsel Haynes, William J. II. to Secretary of Defense (Nov. 27, 2002) (indicating the secretary’s subsequent approval on December 2)Google Scholar.

66 Memorandum from Secretary of Defense Rumsfeld, Donald A. to Commander of U.S. Southern Command (Jan. 15, 2003)Google Scholar.

67 Major General Fay, Investigating Officer, AR 15–6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade, at 29 (Aug. 25, 2004), at <http://www.dod.gov/news/Aug2004/d20040825fay.pdf>>Google Scholar [hereinafter Fay Report].

68 Schlesinger Report, supra note 26, at 36. According to a one–page summary that the White House released to reporters in June 2004, some of those additional techniques, such as physical contact, were not used. White House Press Release on GTMO Interrogation Techniques (June 22, 2004), at <http://www.washingtonpost.com/wp–srv/nation/documents/062204GTMOslide.pdf>>Google Scholar . Some detainees released from Guantanamo Bay, however, have sued U.S. government officials, claiming that the detainees had been beaten, stripped naked, and threatened by dogs. See Four Former Detainees Sue U.S. Officials, Seek Damages, Wash. Post, Oct. 28, 2004, at A13.

69 Fay Report, supra note 67, at 29.

70 Memorandum from Secretary of Defense Rumsfeld, Donald A. to Dep’t of Defense General Counsel Haynes, William J. II. (Jan. 15, 2003)Google Scholar. The Department of Defense general counsel appointed the general counsel of the Air Force to head the working group. See Memorandum from Dep’t of Defense General Counsel Haynes, William J. II to Dep’t of the Air Force General Counsel (Jan. 17, 2003)Google Scholar.

71 Schlesinger Report, supra note 26, at 36. These techniques were apparently contained in a February 2003 document on “standard operating procedures” for special operations forces. Military intelligence personnel involved in such interrogations in Afghanistan (a company of the 519th Military Intelligence Battalion) were later deployed to Iraq. Id.

72 See Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations (Apr. 4, 2003).

73 Id. at 5.

74 Id. at 6.

75 Id. at 7–8.

76 Id. at 20–21.

77 Id at 8–9.

78 Id. at 33.

79 Memorandum from Secretary of Defense Rumsfeld, Donald H. to Commander of US Southern Command, on Counter–resistance Techniques in the War on Terrorism, Tab A, at 1–2 (Apr. 16, 2003)Google Scholar.

80 See Schlesinger Report, supra note 26, at 36.

81 [Editor’s Note: The report notes that the September 14 memorandum by the U.S. commander in Iraq authorized “a dozen interrogation techniques beyond Field Manual 34–52” and “five beyond those approved for Guantanamo.” Moreover, in issuing this authorization, the commander (Lieutenant General Ricardo S. Sanchez), “using reasoning from the President’s Memorandum of February 7, 2002 which addressed ‘unlawful combatants,’ believed additional, tougher measures were warranted because there were ‘unlawful combatants’ mixed in with Enemy Prisoners of War and civilian and criminal detainees.” Schlesinger Report, supra note 26, at 9–10. An internal U.S. Army report issued in August 2004 states that the “overwhelming evidence in this investigation shows that all ‘detainees’ at Abu Ghraib were civilian internees” as defined in the Fourth Geneva Convention. See Fay Report, supra note 67, at 12.]

82 Schlesinger Report, supra note 26, at 37–38.; see Fay Report, supra note 67, at 29; see also Lieutenant General Jones, Anthony R. AR 15–6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade, at 14–15, 21–22 (Aug. 25, 2004) (finding that interrogation techniques approved and developed for detainees in Afghanistan and Guantanamo Bay for persons not protected by the Geneva Conventions were authorized for use in Iraq for persons who were so protected), at <http://www.dod.gov/news/Aug2004/d20040825fay.pdf>>Google Scholar . While the reports initiated by the U.S. military provide much of the picture, the reports were not able to pursue all avenues of inquiry. For example, die Schlesinger panel noted that it “did not have full access to information involving the role of the Central Intelligence Agency in detention operations; this is an area the Panel believes needs further investigation and review.” Schlesinger Report, supra note 26, at 6. An Army general testified before the Senate Armed Services Committee in September 2004 drat the U.S. Central Intelligence Agency (CIA) may have prevented registration with the International Committee of the Red Cross (ICRC) of as many as one hundred Iraqi detainees. See Graham, Bradley & White, Josh, General Cites Hidden Detainees, Wash. Post, Sept. 10, 2004 Google Scholar, at A24; see also White, Josh, Military Intelligence Ordered Captives Hidden, Court Told, Wash. Post, Aug. 5, 2004 Google Scholar, at A14. Secretary of Defense Rumsfeld himself stated that he agreed to hide an Iraqi detainee from the ICRC at the request of CIA Director George J. Tenet. See Priest, Dana & Graham, Bradley, U.S. Struggled Over How Far to Push Tactics, Wash. Post, June 24, 2004, at A1Google Scholar.

83 Fay Report, supra note 67, at 10; see White, Josh & Higham, Scott, Use of Dogs to Scare Prisoners Was Authorized, Wash. Post, June 11, 2004, at A1Google Scholar (reporting on sworn statements provided to military investigators).

84 Fay Report, supra note 67, at 28.

85 See Murphy, supra note 1.

86 See Inspector General, Dep’t of the Army, Detainees Operation Inspection Report, foreword (July 21, 2004), at <http://www4.army.mil/ocpa/reports/ArmyIGDetaineeAbuse/index.html>>Google Scholar .

87 Id.

88 Id., executive summary at iv. The location of the remaining 10 percent of the cases could not be determined.

89 Id.; see White, Josh & Higham, Scott, Army Calk Abuses “Aberrations,” Wash. Post, July 23, 2004, at A1Google Scholar.

90 Sec White, Josh & Ricks, Thomas E. Officers Won’t Be Charged in Prison Scandal, Wash. Post, Aug. 27, 2004, at A17Google Scholar.

91 Schlesinger Report, supra note 26, at 5.

92 Press Briefing by White House Counsel Judge Alberto Gonzales, DOD General Counsel William Haynes, DOD Deputy General Counsel Daniel Dell’Orto, and Army Deputy Chief of Staff for Intelligence General Keith Alexander (June 22, 2004) (statement by White House counsel that “[u]nnecessary, over–broad discussions in some of these memos that address abstract legal theories, or discussions subject to misinterpretation, but not relied upon by decision–makers are under review, and may be replaced, if appropriate, with more concrete guidance addressing only those issues necessary for the legal analysis of actual practices”), at <http://www.whitehouse.gov/news/releases/2004/06/20040622–14.html> ; White House Press Release, Press Briefing by Scott McClellan (June 22, 2004) (White House spokesman stating, in the context of the memoranda being released, that the president “would never authorize the use of torture”), at <http://www.whitehouse.gov/news/releases/2004/06/20040622–3.html> ; see also U.S. Dep’t of Defense Press Release on Press Conference with Members of the Independent Panel to Review Department of Defense Detention Operations (Aug. 24, 2004) (statement by chairman of the independent panel that “there’s been distancing from [the OLC memorandum] over the course of the last few months”), at <http://www.dod.gov/transcripts/2004/tr20040824–secdefl221.html>>Google Scholar ; Allen, Mike & Schmidt, Susan, Memo on Interrogation Tactics Is Disavowed, Wash. Post, June 23, 2004, at A1Google Scholar.

93 See Priest, Dana, CIA Puts Harsh Tactics on Hold, Wash. Post, June 27, 2004, at A1Google Scholar; Jehl, Douglas & Johnston, David, CIA. Expands Its Inquiry into Interrogation Tactics, N.Y. Times, Aug. 29, 2004, at 10Google Scholar.

94 The President’s News Conference in Savannah, Georgia, 40 Weekly Comp. Pres. Doc. 1049, 1051 (June 10, 2004); see also Remarks Following Discussions with Prime Minister Peter Medgyessy of Hungary and an Exchange with Reporters, 40 Weekly Comp. Pres. Doc. 1130, 1131 (June 22, 2004) ( I have never ordered torture. I will never order torture. The values of this country are such that torture is not a part of our soul and our being.”). On the possibility that U.S. military personnel in Iraq believed that they were under pressure from the White House to intensify intelligence–gathering efforts in Abu Ghraib prison in the fall of 2003, see Smith, R. Jeffrey, Brisk Adviser Toured Abu Ghraib, Wash. Post, June 19, 2004,Google Scholar at A11 (reporting on a visit to Abu Ghraib in November 2003 by the White House top counterterrorism adviser, and noting her statement that no such pressure was brought to bear).

95 Testimony of Attorney General John Ashcroft Before the U.S. Senate Committee on the Judiciary, Oversight of the Department of Justice: Terrorism and Other Topics (June 8, 2004). The text of the prepared testimony is at <http://judiciary.senate.gov/schedule_all.cfm>>Google Scholar . Responses to some of the questions, including the one referred to above, appear at <http://www.pbs.org/newshour/bb/fedagencies/jan–june04/torture_6–8.html> .

96 See 150 Cong. Rec. S7203 (daily rep. June 23, 2004). The amendment was adopted with the support of five Republican senators.

97 The text of the amendment appears at 150 Cong. Rec. S7137 (daily rep. June 22, 2004).

98 National Defense Authorization Act for Fiscal Year 2005 §9011, Pub. L. No. 108–287, 118 Stat. 951, 1009 (2004)Google Scholar.

99 Schlesinger Report, supra note 26, at 8; see id. at 36 (same quote except “would” replaced by “could”).