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- Name: BLONDIE
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Look at every path closely and deliberately. Try it as many times as you think necessary. Then ask yourself, and yourself alone, the question...Does this path have a heart? If it does, the path is good. If it doesn't, it is of no use. --from Teachings of Don Juan--
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UNCLASSIFIED WHEN SEPARATED FROM ATTACHMENT
Working Group Report
On
Detainee Interrogations in the Global War on
Terrorism;
Assessment of Legal, Historical, Policy, and
Operational Considerations
6 March 2003
Classified by: Secretary Rumsfeld
Reason: 1.5 (C)
Declassify on: 10 years
Redacted
UNCLASSIFIED WHEN SEPARATED FROM ATTACHMENT
SECRET/NOFORN
II. International Law
(U) The following discussion addresses the requirements of international law, as it pertains to the Armed Forces of the United States, as interpreted by the United States. As will be apparent in other sections of this analysis, other nations and international bodies may take a more restrictive view, which may affect our policy analysis and thus is considered elsewhere.
A. The Geneva Conventions
(U) The laws of war contain obligations relevant to the issue of interrogation techniques and methods. It should be noted, however, that it is the position of the U.S. Government that none of the provisions of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Third Geneva Convention) apply to al Qaida detainees because, inter alia, al Qaida is not a High Contracting Party to the Convention. As to the Taliban, the U.S. Position is that the provisions of Geneva apply to our present conflict with the Taliban, but that Taliban detainees do not qualify as prisoners of war under Article 4 of the Geneva Convention. The Department of Justice has opined that the Geneva Convention Relative to the Protection of Civilian Personnel in time of War (Fourth Geneva Convention) does not apply to unlawful combatants.
B. The 1994 Convention Against Torture
(U) the United States’ primary obligation concerning torture and related practices derives from the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (commonly referred to as "the Torture Convention"). The United States Ratified the Convention in 1994, but did so with a variety of Reservations and Understandings.
(U) Article 1 of the Convention defines the term "torture" for purpose of the treaty. The United States conditioned its ratification of the treaty on an understanding that:
…in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or
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(paragraph redacted).
(U) Article I provides: "For the purpose of this convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him to an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consensus or acquiescence of a public official acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."
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Suffering refers to prolonged mental harm caused by or resulting from the intentional infliction or threatened infliction of severe physical pain or suffering; the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
(U) Article 2 of the Convention requires the Parties to "take effective legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction". The U.S. Government believed existing state and federal criminal law was adequate to fulfill this obligation, and did not enact implementing legislation. Article 2 also provides that acts of torture cannot be justified on the grounds of exigent circumstances, such as state of war or public emergency, or on orders from a superior officer or public authority. The United States did not have an Understanding or Reservation relating to this provision.
(U) Article 3 of the Convention contains an obligation not to expel, return, or extradite a person to another state where there are "substantial grounds" for believing that the person would be in danger of being subjected to torture. The U.S. understanding relating to this article is that it only applies "if it is more likely than not" that the person would be tortured.
(U) Under Article 5, the Parties are obligated to establish jurisdiction over acts of torture when committed in any territory under its jurisdiction or on board a ship or aircraft registered in that state, or by its nationals wherever committed. The "special maritime and territorial jurisdiction of the United States" under 18.U.S.C. § 7 satisfies the U.S. obligation to establish jurisdiction over torture committed in territory under U.S. jurisdiction or on board a U.S. registered ship or aircraft. However, the additional requirement of Article 5 concerning jurisdiction over acts or torture by U.S. nationals "wherever committed" needed legislative implementation. Chapter 113C of Title 18 of the U.S. Code provides federal criminal jurisdiction over an extraterritorial act or attempted act of torture if the offender is a U.S. national. The statute defines "torture" consistent with the U.S. Understanding on Article 1 of the Torture Convention.
(U) The United States is obligated under Article 10 of the Convention to ensure that law enforcement and military personnel involved in interrogations are educated and informed regarding the prohibition against torture. Under Article 11, systematic reviews of interrogation rules, methods, and practices are also required.
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(U) 18 U.S.C. § 2340 tracks this language. For a further discussion of the U.S. understandings and reservations, see the Initial Report of the U.S. to the U.N. Committee Against Torture, dated October 15, 1999.
(U) But see discussion to the contrary at the Domestic Law section on the necessity defense.
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SECRET/NOFORN
(U) In addition to torture, the Convention prohibits cruel, inhuman and degrading treatment or punishment within territories under a Party’s jurisdiction (Art 16). Primarily because the meaning of the term "degrading treatment" was vague and ambiguous, the United States imposed a Reservation on this article to the effect that it considers itself bound only to the extent that such treatment or punishment means the cruel, unusual and inhuman treatment or punishment prohibited by the 5th, 8th, and 14th Amendments to the U.S. Constitution (see discussion infra, in the Domestic Law section),
(U) In sum, the obligations under the Torture Convention apply to the interrogation of unlawful combatant detainees, but the Torture Convention prohibits torture only as defined in the U.S. Understanding, and prohibits "cruel, inhuman, and degrading treatment and punishment" only to the extent of the U.S. Reservation relating to the U.S. Constitution.
(U) An additional treaty to which the United States is a party is the International Covenant on Political and Civil Rights, ratified by the United States in 1992. Article 7 of this treaty provides that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." The United States’ ratification of the Covenant was subject to a Reservation that "the United States considers itself bound by Article 7 only to the extent that cruel, inhuman, or degrading treatment or punishment means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments of the Constitution of the United States." Under this treaty, a "human Rights Committee" may. With the consent of the Party in question, consider allegations that such Party is not fulfilling its obligations under the Covenant. The United States has maintained consistently that the Covenant does not apply outside the United States or its special maritime and territorial jurisdiction, and that it does not apply to operations of the military during an international armed conflict.
C. Customary International Law
(U) The Department of Justice has concluded that customary international law cannot bind the Executive Branch under the Constitution, because it is not a federal law. In particular, the Department of Justice has opined that "under clear Supreme Court precedent, any presidential decision in the current conflict concerning the detention and trial of al-Qaida or Taliban militia prisoners would constitute a "controlling" Executive act that would immediately and completely override any customary international law."
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(U) Memorandum dated January 22, 2002, Re: Application of Treaties to al-Qaida and Taliban detainees at 32.
(U) Memorandum dated January 22, 2002, Re: Application of Treaties to al-Qaida and Taliban detainees at 35.
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AMNESTY INTERNATIONAL
Public Statement
AI Index: AFR 52/002/2004 (Public)
News Service No: 188
28 July 2004
Somalia: Urgent Human Rights Message to the Peace Talks in Kenya
Published
As the Somali National Reconciliation Conference in Mbagathi, Nairobi draws nearer to establishing a Transitional Federal Government after 13 years of unique state collapse and horrific factional violence, Amnesty International is calling for human rights to be made a high priority from the start of the five-year transitional period.
The peace and reconciliation process in Mbagathi, Nairobi is now in the final phase of discussions on "power-sharing" and formation of an inclusive Transitional National Assembly, which will elect a President who will appoint a Prime Minister to form a government. The delegates at the peace talks, who include the armed faction leaders, are currently selecting the Transitional National Assembly.
The establishment of a new Transitional Federal Government very soon - if not by the latest deadline of 31 July - and its international recognition must make a real and immediate difference. Somalis have suffered enormously since the state disintegrated in 1991 after the overthrow of the Siad Barre dictatorship. There must now be a clear end to the arbitrary killings of civilians, kidnappings, rape and looting, which are still being carried out with total impunity by faction militias and gunmen. The resumption of statehood must guarantee human rights and personal security for all citizens, as they regain a recognized citizenship and return from isolation to the world community of nations.
A new government will be under obligation to respect the Universal Declaration of Human Rights and international and regional human rights treaties and conventions, particularly those signed by previous governments of Somalia.
Somalia's new government must be committed to human rights and make a clean break with the gross abuses of the past 30 years, even though some of the perpetrators are still dominating the power-sharing. New human rights abuses must not be tolerated and those responsible for war crimes and crimes against humanity, committed in the past, must be held accountable.
Those entrusted with the responsibilities of government in the transitional period should make clear and public commitments to promote and protect human rights. New conflicts between local communities, clans or regions must be prevented. New violence and abuses must not be tolerated.
Despite humanitarian disaster, chronic clan-based warlordism, economic breakdown and destruction of most infrastructure, there are signs of hope in what is one of the least-developed countries of the world. Through their own resources and minimal international assistance, civil society groups including human rights organizations working under dangerous conditions have supported a momentum towards reconstituting government structures and progress towards the rule of law and justice for all. There is widespread public support for the creation of a strong and independent National Human Rights Commission.
The role of human rights defenders must be recognized and respected by the new authorities. They are vital to build a human rights culture to protect all citizens - particularly the vulnerable categories of women, minorities and children - and support their rights and freedoms.
Amnesty International is appealing to the international community to give firm and generous support for human rights and reconstruction in Somalia. Human rights must be prominent in donor assistance strategies, particularly to respond rapidly to civil protection needs in the first few months of a new government. A UN human rights adviser for Somalia is urgently needed. Measures should be taken to implement the frequently-violated UN arms embargo and disband faction militias. Child soldiers should be demobilized and rehabilitated.
State collapse in Somalia led to serious international and regional insecurity and huge refugee flows and internal displacement. Amnesty International calls for an immediate halt to the forced return of rejected asylum seekers to the south. Conditions for safe return and sustainable livelihood for refugees will require major improvements in security, safe humanitarian access and substantial post-conflict reconstruction.
Background
These difficult peace talks - the 14th attempt, held by the regional Inter Governmental Authority for Development (IGAD) - began in October 2002. A ceasefire declaration signed by the warring parties that month has been constantly violated.
A Transitional Charter for the Somali Republic was adopted in February 2004, aiming "to foster reconciliation, national unity and good governance". It contains important provisions for human rights and the rule of law, guaranteeing separation of powers and the independence of the judiciary. Chapter Five on "Protection of the Fundamental Rights and Freedoms of the People" proclaims the equality of citizens before the law; the rights to life, personal liberty and security; fair trial rights, including the right to be brought before a court within 48 hours of arrest; the right to form political parties (except for any of "a military character or tribal character"), trade unions and social organizations, including human rights organizations; the rights to assemble, demonstrate and strike; and the right to freedom of opinion and expression, including the freedom of the press.
61 seats in the 275-seat interim parliament go to each of the four clans, to be divided out according to clan sub-divisions. 31 seats (half of each clan allocation) go to the unarmed minorities.12% of all seats will be distributed to women in each group. Although these allocations represent advances for the rights of women and minorities, much more determined action is still needed to stop discrimination and violence against women and minorities.
Currently in the south there is a transitional government controlling only part of the capital of Mogadishu; rival armed clan-based factions control other areas. There are few local administrative or judicial structures. The more stable Puntland regional state government in the northeast is participating in the peace process. In the northwest the self-proclaimed and well-established Somaliland government is boycotting the process and pursuing its demand for recognition of its de facto independence.
Public Document
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For more information please call Amnesty International's press office in London, UK, on +44 20 7413 5566
Amnesty International, 1 Easton St., London WC1X 0DW. web: http://www.amnesty.org
For latest human rights news view http://news.amnesty.org
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