Chapter
B. Status as a Failed State
C. Suspension Under International Law
D. Application of the Geneva Conventions As a Matter of Policy
IV. Detention Conditions Under Geneva III
A. Justified Deviations from Geneva Convention Requirements
B. Status of Taliban Prisoners Under Article 4
V. Customary International Law
A. Is Customary International Law Federal Law?
Response to arguments for Applying GPW to the al Qaeda and the Taliban
Option 1–Geneva Convention does not apply to the conflict
Option 2–Geneva Convention applies to the conflict
Comments on the Memorandum of January 25, 2002
Ramifications of Determination that GPW Does Not Apply
Response to Arguments for Applying GPW to the al Qaeda and the Taliban
Status of Legal Discussions re Application of Geneva Convention to Taliban and al Qaeda
1. Legal Conclusion re War Crimes Act Liability
2. Applicability of GPW to Conflict With al Qaeda
3. Applicability of GPW to Conflict With the Taliban
I. The Self-Incrimination Clause Provides a Trial Right
II. Trials by Military Commissions
III. Criminal Trials Before Article III Courts
A. Questioning by military and intelligence personnel for military operations and intelligence information
I. Miranda’s deterrence rationale does not apply
2. Statements obtained during interrogations undertaken to obtain military or intelligence information should be admissible…
B. Interrogations for criminal law enforcement purposes
C. Interrogations by investigative services of one of the U.S. Armed Forces investigating war crimes
D. Interrogations with Mixed or Dual Purposes
IV. Subsequent Mirandizing after failure to warn
VI. The Sixth Amendment Right to Counsel Does Not Apply Prior to the Initiation of Adversary Judicial Criminal Proceedings
VII. The McDade Act Does Not Apply to Defense Department Interrogators
A. “Specifically Intended”
B. “Severe Pain or Suffering”
C. “Severe mental pain or suffering”
II. U.N. Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment
III. U.S. Judicial Interpretation
IV. International Decisions
A. European Court of Human Rights
V. The President’s Commander-in-Chief Power
B. Interpretation to Avoid Constitutional Problems
C. The Commander-in-Chief Power
A. The Geneva Conventions
B. The 1994 Convention Against Torture
C. Customary International Law
a. “Specifically Intended”
b. “Severe Pain or Suffering”
c. “Severe mental pain or suffering”
i. “Prolonged Mental Harm”
ii. Harm Caused By Or Resulting From Predicate Acts
2. Other Federal Crimes that Could Relate to Interrogation Techniques
a. Assaults within maritime and territorial jurisdiction, 18 U.S.C. 113
c. Murder, 18 U.S.C. 1111
d. Manslaughter, 18 U.S.C. 1112
e. Interstate Stalking, 18 U.S.C. 2261A
f. Conspiracy, 18 U.S.C. 2 and 18 U.S.C. 371
3. Legal doctrines under the Federal Criminal Law that could render specific conduct, otherwise criminal, not unlawful
a. Commander-in-Chief Authority
d. Law Enforcement Actions
4. Lack of DOJ Representation for DOD Personnel Charged with a Criminal Offense
B. Federal Civil Statutes
2. Torture Victims Protection Act (TVPA)
C. Applicability of the United States Constitution
1. Applicability of the Constitution to Aliens Outside the United States
2. The Constitution Defining U.S. Obligations Under International Law
b. Fifth Amendment and Fourteenth Amendment
D. Jurisdiction of Federal Courts
1. Jurisdiction to Consider Constitutional Claims
2. Other Bases for Federal Jurisdiction
3. The Military Extraterritorial Jurisdiction Act
E. The Uniform Code of Military Justice
a. Cruelty, Oppression or Maltreatment, Art 93
b. Reckless Endangerment, Art 134
d. Involuntary Manslaughter, Art 119
e. Unpremeditated Murder, Art 118
f. Disobedience of Orders, Art 92
g. Dereliction of Duty, Art 92
2. Affirmative Defenses under the UCMJ (R.C.M. 916)
f. Obedience to Orders (MJB, Sections 5-8-1 and 5-8-2)
3. Legal doctrines could render specific conduct, otherwise criminal, not Unlawful
IV. Considerations Affecting Policy
A. Historical Role of U.S. Armed Forces
2. Interrogation Historical Overview.
B. Presidential and Secretary of Defense Directives
A. The Geneva Conventions
B. The 1994 Convention Against Torture
C. Customary International Law
a. “Specifically Intended”
b. “Severe Pain or Suffering”
c. “Severe mental pain or suffering”
i. “Prolonged Mental Harm”
ii. Harm Caused By Or Resulting From Predicate Acts
2. Other Federal Crimes that Could Relate to Interrogation Techniques
a. Assaults within maritime and territorial jurisdiction, 18 U.S.C. 113
b. Maiming, 18 U.S.C. 114
c. Murder, 18 U.S.C. 1111
d. Manslaughter, 18 U.S.C. 1112
e. Interstate Stalking, 18 U.S.C. 2261A
f. Conspiracy, 18 U.S.C. 2 and 18 U.S.C. 371
3. Legal doctrines under the Federal Criminal Law that could render specific conduct, otherwise criminal, not unlawful
a. Commander-in-Chief Authority
d. Military Law Enforcement Actions
4. Lack of DOJ Representation for DOD Personnel Charged with a Criminal Offense
B. Federal Civil Statutes
2. Torture Victims Protection Act (TVPA)
C. Applicability of the United States Constitution
1. Applicability of the Constitution to Aliens Outside the United States
2. The Constitution Defining U.S. Obligations Under International Law
b. Fifth Amendment and Fourteenth Amendment
D. Jurisdiction of Federal Courts
1. Jurisdiction to Consider Constitutional Claims
2. Other Bases for Federal Jurisdiction
3. The Military Extraterritorial Jurisdiction Act
E. The Uniform Code of Military Justice
a. Cruelty, Oppression or Maltreatment, Art 93
b. Reckless Endangerment, Art 134
d. Involuntary Manslaughter, Art 119
e. Unpremeditated Murder, Art 118
f. Disobedience of Orders, Art 92
g. Dereliction of Duty, Art 92
2. Affirmative Defenses under the UCMJ (R.C.M. 916)
f. Obedience to Orders (MJB, Sections 5-8-1 and 5-8-2)
3. Legal doctrines could render specific conduct, otherwise criminal, not unlawful
IV. Considerations Affecting Policy
A. Historical Role of U.S. Armed Forces
2. Interrogation Historical Overview
B. Presidential and Secretary of Defense Directives
C. DOD-Specific Policy Considerations
D. Potential Effects on Prosecutions
E. International Considerations That May Affect Policy Determinations
2. Convention Against Torture
3. Customary International Law/Views of Other Nations
4. International Criminal Court
VI. Evaluation of Useful Techniques
VII. Conclusions Relevant to Interrogation of Unlawful Combatants Under DOD Control Outside the United States
General Comments on Techniques Chart
Description of Interrogation Techniques
TAB A INTERROGATION TECHNIQUES
I. Removal of “Protected Persons” Who Are Illegal Alliens
II. Temporary Transnational Relocation of “Protected Persons” to Facilitate Interrogation
A. “Protected Persons” Who Have Been Accused of an Offense
B. ”Protected Persons” Who Have Not Been Accused of an Offense
1. TREATMENT DURING ARREST
1.1 Notification to families and information for arrestees
2. TREATMENT DURING TRANSFER AND INITIAL CUSTODY
3. TREATMENT DURING INTERROGATION
3.1 Methods of Ill-treatment
3.2 Military Intelligence section, “Abu Ghraib Correctional Facility”
3.3 Umm Qasr (JFIT) and Camp Bucca (JIF/ICE)
3.4 Previous actions taken by the ICRC in 2003 on the issue of treatment
3.5 Allegations of ill-treatment by Iraqi police
4. TREATMENT IN REGULAR INTERNMENT FACILITIES
4.1 General conditions of treatment
4.2 “High Value Detainees” section, Baghdad International Airport
5. EXCESSIVE AND DISPROPORTIONATE USE OF FORCE AGAINST PERSONS DEPRIVED OF THEIR LIBERTY BY THE DETAINING AUTHORITIES
6. SEIZURE AND CONFISCATION OF PRIVATE BELONGINGS OF PERSONS DEPRIVED OF THEIR LIBERTY
7. EXPOSURE OF INTERNEES/DETAINEES TO DANGEROUS TASKS
8. PROTECTION OF PERSONS DEPRIVED OF THEIR LIBERTY AGAINST SHELLING
ASSESSMENT OF DoD COUNTER-TERRORISM INTERROGATION AND DETENTION OPERATIONS IN IRAQ (MG MILLER’S ASSESSMENT)
IO COMMENTS ON MG MILLER’S ASSESSMENT
REPORT ON DETENTION AND CORRECTIONS IN IRAQ (MG RYDER’S REPORT)
A. (U) Detainee Management (including movement, segregation, and accountability)
B. (U) Means of Command and Control of the Detention and Corrections System
IO COMMENTS REGARDING MG RYDER’S REPORT
PRELIMINARY INVESTIGATIVE ACTIONS
FINDINGS AND RECOMMENDATIONS
REGARDING PART ONE OF THE INVESTIGATION, I MAKE THE FOLLOWING SPECIFIC FINDINGS OF FACT:
RECOMMENDATIONS AS TO PART ONE OF THE INVESTIGATION:
FINDINGS AND RECOMMENDATIONS
REGARDING PART TWO OF THE INVESTIGATION, I MAKE THE FOLLOWING SPECIFIC FINDINGS OF FACT:
RECOMMENDATIONS REGARDING PART TWO OF THE INVESTIGATION:
FINDINGS AND RECOMMENDATIONS
REGARDING PART THREE OF THE INVESTIGATION, I MAKE THE FOLLOWING SPECIFIC FINDINGS OF FACT:
RECOMMENDATIONS AS TO PART THREE OF THE INVESTIGATION:
OTHER FINDINGS/OBSERVATIONS
AR 15-6 Investigation–Allegations of Detainee Abuse at Abu Ghraib
ASSESSMENT OF DoD COUNTERTERRORISM INTERROGATION AND DETENTION OPERATIONS IN IRAQ (U)
ANNEX A: ASSESSMENT TEAM MEMBERS
ANNEX B: INFORMATION TECHNOLOGY SOLUTIONS
HEADQUARTERS COMBINED JOINT TASK FORCE SEVEN BAGHDAD IRAQ APO AE 09335
INTERROGATION APPROACHES (Security Internees)
Statements on 16 Jan 2004
EXECUTIVE SUMMARY/INTRODUCTION
THE ALLEGED INTERROGATION PRACTICES
THE ADMINISTRATION’S RESPONSES
LEGAL STANDARDS PROHIBITING TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT
The Convention Against Torture
Other International Legal Standards which Bind the United States
Legal Standards which the United States Should Look to for Guidance
Standards in the Time of Terror
THE CONVENTION AGAINST TORTURE
CAT’S DEFINITIONS OF– AND PROHIBITIONS AGAINST – TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT
CAT’S PROHIBITION AGAINST TORTURE AND CID TREATMENT AS INTERPRETED BY THE U.N. COMMITTEE AGAINST TORTURE
U.S. LAW IMPLEMENTING CAT’S PROHIBITIONS AGAINST TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
U.S. Understandings and Reservations in Ratifying CAT
The Implementation of CAT’s Prohibition against Torture in U.S. Legislation, Regulation and Case Law
U.S. Immigration Law and Torture
U.S. Extradition of Fugitives Who Face Threat of Torture
U.S. Implementation of CAT’s Criminal Law Requirements
U.S. Case Law Interpretations of Torture in Tort Claims
Conclusion: CAT’s Prohibition against Torture as Implemented in U.S. Legislation and Regulation
CAT’s Prohibition against “Cruel, Inhuman or Degrading Treatment,” as Interpreted by United States Law
Fifth and Fourteenth Amendment Standards
Eighth Amendment Standards
ENFORCEMENT OF CAT UNDER U.S. LAW
Uniform Code of Military Justice
APPLICATION OF THE GENEVA CONVENTIONS TO THE AFGHAN CONFLICT GENERALLY
The United States’ Position
Critiques of the United States’ Position
Article 5 Presumes POW Status Until the Determination of Status by a Competent Tribunal
The Taliban Detainees Were “Regular Armed Forces” and, Therefore, Are Encompassed by Article 4(A) of Geneva III
Policy Arguments Favoring Broad Grant of POW Status to Non-Civilian Detainees from the War in Afghanistan
OTHER INTERNATIONAL LEGAL STANDARDS
THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
The Human Rights Committee
ORGANIZATION OF AMERICAN STATES’ INSTRUMENTS
CUSTOMARY NTERNATIONAL LAW AND JUS COGENS
SHOULD EXCEPTIONS BE MADE FOR THE ‘‘WAR ON TERROR”?: THE EXPERIENCE OF OTHER JURISDICTIONS
LEGAL CHALLENGES TO INTERROGATION PRACTICES IN NORTHERN IRELAND AND ISRAEL
The Republic of Ireland v. The United Kingdom
Israeli Supreme Court Judgment Concerning The Legality Of The General Security Service’s Interrogation Methods
THE LEGAL AND MORAL IMPLICATIONS OF THE “TICKING BOMB” SCENARIO
THE COMMITTEE ON INTERNATIONAL HUMAN RIGHTS
THE COMMITTEE ON MILITARY AFFAIRS AND JUSTICE
I. Prohibitions Against Torture
II. Possible U.S. Complicity in Torture
III. International Prosecutions for Torture and Command Responsibility
Executive Summary Detainee Operations
Capture, Care, and Control of Detainees
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
OPERATION ENDURING FREEDOM
CURRENT MI FORCE STRUCTURE
MI–COUNTER-INTELLIGENCE/HUMAN INTELLIGENCE FORCE DESIGN UPDATE
CURRENT MP FORCE STRUCTURE
MP I/R BATTALION FORCE DESIGN UPDATE SECTION
Chapter 6 Summary of Recommendations
2. Recommendation for Implementation:
3. Chapter 3, Capture, Care, and Control of Detainees:
4. Chapter 4, Interrogation Operations:
5. Chapter 5, Other Observations:
Appendix B Acting Secretary of the Army
Appendix C Locations Visited
Appendix D Inspection Tools
e. STAFF ENGINEER (DIVISION & ABOVE)
f. MI BDE/BN CDR/S-3/CO CDR/1SG
g. MP BDE COMMANDER INTERVIEW QUESTIONS
h. CDR/OIC & SGM/NCOIC INTERNMENT FACILITY
j. OIC & NCOIC COLLECTION POINT
k. INTERROGATOR OIC/NCOIC
l. INTERROGATOR QUESTIONS
m. S-4 (INTERNMENT FACILITY)
n. ENGINEER SUPPORT TO INTERNMENT FACILITIES (MP BDE/BN)
o. MEDICAL OFFICER/PREVENTIVE MEDICAL OFFICER
p. NCOIC GUARD FORCE COLLECTION POINT & INTERNMENT FACILITY
q. POINT OF CAPTURE–CDR/1SG/PL/PS
r. DETAINEE ADMINISTRATION COLLECTION POINT/INTERNMENT FACILITY
2. SENSING SESSION QUESTIONS
a. NCO (Point of Capture)
b. SOLDIER (Point of Capture)
c. GUARD FORCE (NCO) COLLECTION POINT & INTERNMENT FACILITY
d. GUARD FORCE (ENLISTED) COLLECTION POINT & INTERNMENT FACILITY
a. Receipt at the US Military Controlled Detention Facilities Worksheet
b. Receipt at the (BDE/DIV) Collection Point to Evacuation to US Military Controlled Detention Facilities Worksheet.
c. From Capture to the Collection Point Worksheet
d. PREVENTIVE MEDICINE SITE ASSESSMENT TOOL (FOR COLLECTION POINTS/INTERNMENT FACILITIES)
e. COMBAT/OPERATIONAL STRESS QUESTIONNAIRE
“THEATER INTERROGATION FACILITY
INTERIM BRIGADE COMBAT TEAM
RESERVE COMPONENT INTEGRATION
CATEGORIES OF INTERPRETERS
Appendix F Abbreviations and Acronyms
DETENTION AND INTERROGATION OPERATIONS
POLICY AND COMMAND RESPONSIBILITIES
INTRODUCTION–CHARTER AND METHODOLOGY
THE POLICY PROMULGATION PROCESS
PUBLIC RELEASE OF ABUSE PHOTOS
Informing Senior Officials
Failure of the Combatant Command to Adjust the Plan
MILITARY POLICE AND DETENTION OPERATIONS
Mobilization and Training
Mobilization and Deployment
Inadequate Training for the Military Police Mission
Force Structure Organization
Current Military Police Structure
New Force Structure Initiatives
Detention Operations and Accountability
Detainee Accountability and Classification
Human Intelligence from Interrogations
Pressure on Interrogators to Produce Actionable Intelligence
Interrogation Operations Issues
Leadershipand Organization Shortfalls at Abu Ghraib
Use of Contractors as Interrogators
THE ROLE OF MILITARY POLICE AND MILITARY INTELLIGENCE IN DETENTION OPERATIONS
Military Working Dogs at Abu Ghraib
LAWS OF WAR/GENEVA CONVENTIONS
Operation Enduring Freedom
THE ROLE OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS
The Stanford Prison Experiment
Social Psychology: Causes of Aggression and Inhumane Treatment
Abuse and Inhumane Treatment in War
Ethical Foundations of Detention and Interrogation
Permissions and Limits on Detentions
Permissions and Limits on Interrogation Techniques
Investigation of Intelligence Activities At Abu Ghraib
Discipline and Leadership
Other Contributing Factors
AR 15-6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade
(U) AR 15–6 Investigation of the Abu Ghraib Detention Facility and 205th MI Brigade
a. (U) Appointment, Charter and Investigative Activity
b. (U) Background and Operational Environment
c. (U) Abuse at Abu Ghraib
2. (U) CHARTER AND INVESTIGATIVE ACTIVITY
3. (U) BACKGROUND: OPERATION IRAQI FREEDOM DURING THIS PERIOD
4. (U) OPERATIONAL ENVIRONMENT
5. (U) ASSESSMENTS AND VISITS TO IMPROVE INTELLIGENCE, DETENTION AND INTERROGATION OPERATIONS
6. (U) INDICATIONS AND WARNINGS
7. (U) DOCTRINE, ORGANIZATIONAL STRUCTURE AND POLICY CHALLENGES IN THE IRAQI THEATER OF OPERATIONS
a. (U) Doctrine and Organizational Structures
8. (U) SPECIFIC COMMENTS ON ABUSE AT ABU GHRAIB
9. (U) ASSESSMENTS AS THE SENIOR INVESTIGATING OFFICER
c. (U) Summaries of assessment visits.
e. (U) Policy and Procedures
h. (U) Leader Development.
10. (U) CONCLUDING FINDINGS AND RECOMMENDATIONS
a. (U) SUMMARY AS SENIOR INVESTIGATING OFFICER.
b. (U) RESPONSIBILITY ABOVE 205TH MI BRIGADE
d. (U) V CORPS TRANS ITION TO CJTF
e. (U) INTELLIGENCE ARCHITECTURE and INTELLIGENCE PERSONNEL RESOURCES
g. (U) OTHER GOVERNMENT AGENCIES
h. (U) LEADERSHIP and SUCCESSES
AR 15-6 INVESTIGATION OF THE ABU GHRAIB DETENTION FACILITY AND 205th MILITARY INTELLIGENCE BRIGADE (U)
1. (U) APPOINTING OFFICIALS’ INSTRUCTIONS AND INVESTIGATIVE METHODOLOGY
a. (U) Appointing Officials’ Instruction.
b. (U) Investigative Methodology.
b. (U) Problems: Doctrine, Policy, Training, Organization, and Other Government Agencies.
c. (U) Detainee Abuse at Abu Ghraib.
3. (U) BACKGROUND AND ENVIRONMENT
a. (U) Operational Environment
b. (U) Law, Policy, Doctrine and Training
(3) (U) Military Intelligence Doctrine and Training
(4) (U) Military Police Doctrine and Training
(5) (U) Intelligence and Interrogation Policy Development.
(6) (U) Other Regulatory Procedural Guidance
4. (U) SUMMARY OF EVENTS AT ABU GHRAIB
a. (U) Military Intelligence Organization and Resources
(1) (U) Task Organization
b. (U) Establishment of the Prison at Abu Ghraib
c. (U) Detention Operations and Release Procedures
d. (U) Establishment of MP Presence at Abu Ghraib.
e. (U) Establishment of MI Presence at Abu Ghraib
f. (U) Establishment, Organization, and Operation of the Joint Interrogation Debriefing Center (JIDC)
g. (U) Contract Interrogators and Linguists
h. (U) Other Government Agencies and Abu Ghraib
i. (U) The Move of the 205 MI BDE Commander to Abu Ghraib.
j. (U) Advisory and Training Team Deployments
(1) (U) MG Geoffrey Miller Visit
(2) JTF-GTMO Training Team.
(3) (U) Fort Huachuca Mobile Training Team
k. (U) International Committee of the Red Cross (ICRC)
5. SUMMARY OF ABUSES AT ABU GHRAIB
6. (U) FINDINGS AND RECOMMENDATIONS
b. (U) Other Findings and Recommendations.
c. (U) Individual Responsibility for Detainee Abuse at Abu Ghraib.
7. (U) Personnel Listing.
8. (U) TASK FORCE MEMBERS.
American Bar Association Report to the House of Delegates
The Convention Against Torture
Application of Geneva Conventions and the Anti-Torture Statute to Civilians
Other International Legal Standards that Bind the United States
1. Summary of Recommendation(s).
2. Approval by Submitting Entity.
3. Has this or a similar recommendation been submitted to the House or Board previously?
4. What existing Association policies are relevant to this recommendation and how would they be affected by its adoption?
5. What urgency exists which requires action at this meeting of the House?
6. Status of Legislation.
7. Cost to the Association.
8. Disclosure of Interest. (If applicable)
10. Contact Persons (Prior to the meeting).
11. Contact Persons (Who will present the report to the House)
Human Rights Standards Applicable To The United States’ Interrogation of Detainees
Application of the Geneva Conventions to the Occupation of Iraq
Are There Exceptions To The Geneva Conventions For “Security” Detainees Or Detainees Who Possess “High Value Intelligence”?
The Applicability of the Minimal Safeguards of Common Article 3 of the Geneva Conventions
Enforcement of the Geneva Conventions and the Anti-Torture Statute against Civilians
INTERROGATION RULES OF ENGAGEMENT
The Torture Papers
：The Road to Abu Ghraib
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