Sourced from t r u t h o u t . o r g
(Redacted)
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
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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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(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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III.
Domestic Law
A.
Federal Criminal Law
1.
Torture Statute
(U) 18 U.S.C. § 2340 defines as torture any "act committed by a person acting under the color of law specifically
intended to inflict severe physical or mental pain…" The intent required is the intent to inflict severe physical or
mental pain. 18 U.S.C. § 2340A requires that the offense occur "outside the United States". Jurisdiction over the
offense extends to any national of the United States or any alleged offender present in the United States, and could,
therefore, reach military members, civilian employees of the United States, or contractor employees. The "United States"
is defined to include all areas under the jurisdiction of the United States, including the special maritime and
territorial jurisdiction (SMTJ) of the United States. SMTJ is a statutory creation that extends the criminal
jurisdiction of the United States for designated crimes to defined areas. The effect is to grant federal court criminal
jurisdiction for the specifically identified crimes.
(U) Guantanamo Bay Naval Station (GTMO) is included within the definition of the special maritime and territorial
jurisdiction of the United States, and accordingly, is within the United States for the purposes of §2340, Thus, the
Torture Statue does not apply to the conduct of U.S. personnel at GTMO. That GTMO is within the SMTJ of the United
States is manifested by the prosecution of civilian dependents and employees living in GTMO in Federal District Courts
based on SMTJ jurisdiction and Department of Justice opinion(11) and the clear intention of Congress as reflected in the
2001 amendment to the SMTJ. The USA Patriot Act (2001) amended § 7 to ad subsection 9, which provides:
"With respect to offenses committed by or against a national of the United States as that term is used in section 101 of
the Immigration and Nationality Act--
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(U) Section 2340A provides, "Whoever outside the Unites States commits or attempts to commit torture shall be fined or
imprisoned…"(emphasis added).
(U) 18 USC § 7, "Special maritime and territorial jurisdiction of the United States" includes and lands under the
exclusive or concurrent jurisdiction of the United States.
(U) Several paragraphs of 19 USC § 7 are relevant to the issue at hand. Paragraph 7(3) provides: [SMTJ includes:] "Any
lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof,
or any place…" Paragraph 7(7) provides [SMTJ includes:] "Any place outside the jurisdiction of any nation to an offense
by or against a nation of the United States." Similarly, paragraphs 7(1) and 7(5) extend SMTJ jurisdiction to "the high
seas, and other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction
of any particular state, and any vessel belonging in whole or in part to the United States…" and to "any aircraft
belonging in whole or in part in the United States… while such aircraft is in flight over the high seas, or over any
other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any
particular State."
(U) 6 Op.OLC236 (1982). The issue was the status of GTMO for purposes of a statute banning slot-machines on "any land
where the United States government exercises exclusive or concurrent jurisdiction."
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(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities
in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for
purposes of maintaining those missions or entities, irrespective of ownership; and
(B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for
purposes of those missions or entities or used by United States personnel assigned to those missions or entities.
Nothing in this paragraph shall be deemed to supercede any treaty or international agreement with which this paragraph
conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261(a)
of this title.
(U) Any person who commits an enumerated offense in a location that is considered within the special maritime and
territorial jurisdiction is subject tot the jurisdiction of the United States.
(U) For the purposes of this discussion, it is assumed that an interrogation done for official purposes is under "color
of law" and that detainees are in DOD’s custody or control.
(U) Although Section 2340 does not apply to interrogations at GTMO, it would apply to U.S. operations outside U.S.
jurisdiction, such as Afghanistan. The following analysis is relevant to such activities.
(U) To convict a defendant of torture, the prosecution must establish that: (1) the torture occurred outside the United
States; (2) the defendant acted under color of law; (3) the victim was within the defendant’s custody or physical
control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering; and (5) that the
act inflicted severe physical or mental pain or suffering. See also S. Exec. Rep. No. 101-30, at 6 (1990). ("For an act
to be "torture," it must… cause severe pain and suffering, and be intended to cause severe pain and suffering.")
a.
"Specifically Intended"
(U) To violate Section 2340A, the statute requires that severe pain and suffering must be inflicted with specific
intent. See U.S.C. § 2340(1). In order for a defendant to have acted with specific intent, he must have expressly
intended to achieve the forbidden act. See United States v. Carter, 530 U.S. 255, 269 (2000); Black’s Law Dictionary at
814 (7th ed. 1999) (defining specific intent as "[t]he intent to accomplish the precise criminal act that one is later
charged with".) For example, in Ratzlaf v. United States, 510 U.S. 135, 141 (1994), the statute at issue was construed
to require that the defendant act with the "specific intent to commit the crime". (Internal quotation marks and citation
omitted). As a result, the defendant had to act with the express "purpose to disobey the law" in order for the mens rea
element to be satisfied. Ibid. (Internal quotation marks and citation omitted.)
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(U) Here, because Section 2340 requires that a defendant act with the specific intent to inflict severe pain, the
infliction of such pain must be the defendant’s precise objective. If the statute had required only general intent, it
would be sufficient to establish guilt by showing the defendant "possessed knowledge with respect to the actus reus of
the crime." Carter, 530 U.S. at 268. If the defendant acted knowing that severe pain or suffering was reasonably likely
to result from his actions, but no more, he would have acted only with general intent. See id at 269 Black’s Law
Dictionary: 813 (7th ed. 1999) (explaining that general intent "usu[ally] takes the form of recklessness (involving
actual awareness of a risk and the culpable taking of that risk) or negligence ( involving blameworthy inadvertence)").
The Supreme Court has used the following example to illustrate the difference between these two mental states:
[A] person entered a bank and took money from a teller at gunpoint, but deliberately failed to make a quick getaway from
the bank in the hope of being arrested so that he would be returned to prison and treated for alcoholism. Though this
defendant knowingly engaged in the acts of using force and taking money (satisfying "general intent"), he did not intend
permanently to deprive the bank of its possession of the money (failing to satisfy "specific intent").
Carter, 530 U.S. at 268 (citing 1 W. Lafave & A. Scott, Substantive Criminal Law § 3.5, at 315 (1986).
(U) As a theoretical matter, therefore, knowledge alone that a particular result is certain to occur does not constitute
specific intent. As the Supreme Court explained in the context of murder, "the…common law of homicide
distinguishes…between a person who knows that another person will be killed as a result of his conduct and a person who
acts with the specific purpose of taking another’s life[.]" United States v. Bailey, 444 U.S. 394, 405 (1980). "put
differently, the law distinguishes actions taken ‘because of’ a given end from actions taken ‘in spite’ of their
unintended but foreseen consequences." Vacco v. Quill, 521 U.S. 793, 802-03 (1997). Thus, even if the defendant knows
that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite
specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if
he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical
control. While as a theoretical matter such knowledge does not constitute specific intent, juries are permitted to infer
from the factual circumstances that such intent is present. See, e.g., United States v. Godwin, 272 F.3d 659, 666 (4th
Cir, 2001); United States v. Karro, 257 F.3d 112, 118 (2d Cir. 2001); United States V. Wood, 207 F.3d 1222, 1232 (10th
Cir. 2000); Henderson v. United States, 202 F.2d 400, 403 (6th Cir. 1953). Therefore when a defendant knows that his
actions will produce the prohibited result, a jury will in all likelihood conclude that the defendant acted with
specific intent.
(U) Further, a showing that an individual acted with a good faith belief that his conduct would not produce the result
that the law prohibits negates specific interest. See, e.g. South Atl. Lmtd. Ptrshp. Of Tenn v. Reise, 218 F.3d 518, 531
(4th Cir. 2002). Where
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c.
Severe Mental Pain or Suffering
(U) Section 2340 gives further guidance as to the meaning of "severe mental pain or suffering" as distinguished from
severe physical pain and suffering. The statute defines "severe mental pain or suffering" as:
the prolonged mental harm caused by or resulting from -
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) 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’
(C) the threat of imminent death; or
(D) 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.
18 U.S.C.§ 2340(2). In order to prove "severe mental pain or suffering", the statute requires proof of "prolonged mental
harm" that was caused by or resulted from one of four enumerated acts. We consider each of these elements.
i.
"Prolonged Mental Harm"
(U) As an initial matter, Section 2340(2) requires that the severe mental pain must be evidenced by "prolonged mental
harm". To prolong is to "lengthen in time" or to "extend the duration of, to draw out". Webster’s Third New
International Dictionary 1815 (1988); Webster’s New International Dictionary 1980 (2d ed. 1935). Accordingly, "prolong"
adds a temporal dimension to the harm to the individual, namely, that the harm must be one that is endured over some
period of time. Put another way, the acts giving rise to the harm must cause some lasting, though not necessarily
permanent, damage. For example, the mental strain experienced by an individual during a length and intense interrogation
such as one that state or local police might conduct upon a criminal suspect, would not violate Section 2340(2). On the
other hand, the development of a mental disorder such as posttraumatic stress disorder, which can last months or even
years, or even chronic depression, which can also last for a considerable period of time is untreated, might satisfy the
prolonged hard requirement. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders
426, 439-45 (4th ed. 1994) ("DSM-IV"). See also Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U.
Rev. L. & Soc. Change 477, 509 (1977) (noting that posttraumatic stress disorder is frequently found in torture victims); cf Sana
Loue, Immigration Law and Health § 10:46 (2001) (recommending evaluating for post-traumatic stress disorder
immigrant-client
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who has experienced torture). By contrast to "severe pain" the phrase "prolonged mental harm" appears nowhere else in
the U.S. Code nor does it appear in relevant medical literature or international human rights reports.
(U) Not only must the mental harm be prolonged to amount to severe mental pain and suffering, but also it must be caused
by or result from one of the acts listed in the statute. In the absence of a catchall provision, the most natural
reading of the predicate acts listed in Section 2340(2)(A)(D) is that Congress intended the list to be exhaustive. In
other words, other acts not included within Section 2340(2)’s enumeration are not within the statutory prohibition. See
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) ("Expressio unius est exclusion alterius"); Norman Singer, 2A Sutherland on
Statutory Construction § 47, 23 (6th ed. 2000) ("[W]here a form of conduct the manner of its performance and operation,
and the persons and things to which it refers are designated, there is an inference that all omissions should be
understood as exclusions.") (footnotes omitted). We conclude that torture within the meaning of the statute requires the
specific intent to cause prolonged mental harm by one of those acts listed in Section 2340(2).
(U) A defendant must specifically intend to cause prolonged mental harm for the defendant to have committed torture. It
could be argued that a defendant needs to have specific intent only to commit the predicate acts that give rise to
prolonged mental harm. Under that view, so long as the defendant specifically intended to, for example, threaten a
victim with imminent death, he would have sufficient mens rea for a conviction. According to this view, it would be
further necessary for a conviction to show only that the victim factually suffered prolonged mental harm, rather than
that the defendant intended to cause it. We believe that this approach is contrary to the text of the statute. The
statute requires that the defendant specifically intend to inflict severe mental pain or suffering. Because that statute
requires this mental state with respect to the infliction of severe mental pain and because is expressly defines severe
mental pain in terms of prolonged mental harm, that mental state must be present with respect to prolonged mental harm.
To read the statute otherwise would read the phrase "prolonged mental harm caused by or resulting from" out of the
definition of "severe mental pain or suffering".
(U) A defendant could negate a showing of specific intent to cause severe mental pain or suffering by showing that he
had acted in good faith that his conduct would not
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the DSM-IV explains that posttraumatic stress disorder )"PTSD") is brought on by exposure to traumatic events, such as
serious physical injury or witnessing the deaths of others and during those events the individual felt "intense fear" or
"horror." Id at 424. Those suffering from this disorder re-experience the trauma through, inter alia, "recurrent and
intrusive distressing recollections of the event", "recurrent distressing dreams of the event", or "intense
psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic
event," Id at 428. Additionally, a person with PTSD "[p]ersistently" avoids stimuli associated with the trauma,
including avoiding conversations about the trauma, places that stimulate recollections about the trauma, and they
experience a numbing of general responsiveness, such as a "restricted range of affect (e.g., unable to have living
feelings)", and "the feeling of detachment or estrangement from others." Ibid. Finally, an individual with PTSD has
"[p]ersistent symptoms of increased arousal," as evidenced by "irritability or outbursts of anger", "hypervigilance",
"exaggerate startle response", and difficulty sleeping or concentrating. Ibid.
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amount to the acts prohibited by the statute. Thus, if as defendant has a good faith belief that his actions will not
result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture. A defendant
could show that he acted in good faith by taking such steps as surveying professional literature, consulting with
experts, or reviewing evidence gained from past experience. See, e.g., Ratlzlaf, 510 U.S. at 142 n.10 (noting that where
the statute required that the defendant act with the specific intent to violate the law, the specific intent element
"might be negated by, e.g., proof that defendant relied in good faith on advice of counsel.") (citations omitted). All
of these steps would allow that he had drawn on the relevant body of knowledge concerning the result proscribed by the
statute, namely prolonged mental harm. Because the presence of good faith would negate the specific intent element of
torture, good faith may be a complete defense to such a charge. See, e.g., United States v. Wall, 130 F. 3d 739, 746
(6th Cir. 1997); United States v. Casperson, 773 f.2d 216, 222.23 (8th Cir. 1985).
ii.
Harm Caused By Or Resulting From Predicate Acts
(U) Section 2340(2) sets forth four basic categories of predicate acts. The first category is the "intentional
infliction or threatened infliction of severe physical pain or suffering". The might at first appear superfluous because
the statute already provides that the infliction of severe physical pain or suffering can amount to torture. This
provision, however, actually captures the infliction of physical pain or suffering when the defendant inflicts physical
pain or suffering with general intent rather than the specific intent that is required where severe physical pain or
suffering alone is the basis for the charge. Hence, this subsection reaches the infliction of severe physical pain or
suffering when it is only the means of causing prolonged mental harm. Or put another way, a defendant has committed
torture when he intentionally inflicts severe physical pain or suffering with the specific intent of causing prolonged
mental harm. As for the acts themselves, acts that cause "severe physical pain or suffering" can satisfy this provision.
(U) Additionally, the threat of inflicting such pain is a predicate act under the statute. A threat may be implicit or
explicit. See, e.g., United States v. Sachdev, 279 F.3d 25, 29 (1st Cir. 2002). In criminal law, courts generally
determine whether and individual’s word or actions constitute a threat by examining whether a reasonable person in the
same circumstances would conclude that a threat had been made. See, e.g., Watts v. United States, 394 U.S. 705, 708
(1969) (holding that whether a statement constituted a threat against the president’s life had to be determined in light
of all the surrounding circumstances); Sachdev, 279 F.3d at 29 ("a reasonable person in defendant’s position would
perceive there to be a threat, explicit or implied, of physical injury"); United States v. Khorrami, 895 F2.d 1186, 1190
(7th Cir. 1990) (to establish that a threat was made, the statement must be made "in a context or under such
circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the
maker communicates a statement as a serious expression of an intention to inflict bodily harm upon [another
individual]") (citation and internal quotation marks omitted): United States v. Peterson, 483 F.2d 1222, 1230 (D.C. Cir.
1973) (perception of threat of imminent harm necessary to establish self-defense had to be "objectively reasonable in
light of the surrounding circumstances"). Based on this common approach,
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we believe that the existence of a threat of severe pain or suffering should be assessed from the standpoint of a
reasonable person in the same circumstances.
(U) Second, Section 2340(2)(B) provides that prolonged mental harm, constituting torture, can be caused by "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 statute provides no further definition
of what constitutes a mind-altering substance. The phrase "mind-altering substances" is found nowhere else in the U.S.
Code, nor is it found in dictionaries. It is, however, a commonly used synonym for drugs. See, e.g. United States v.
Kingsley, 241 F.3d 828, 834 (6th Cir.) (referring to controlled substances as "mind-altering substance[s]"), cert,
denied, 122 S. Ct. 137 (2001); Hogue V. Johnson, 131 f.3d 466, 501 (5th Cir. 1997) (referring to drugs and alcohol as
"mind-altering substance[s]"), cert denied, 523 U.S. 1014 (1998). In addition, the phrase appears in a number of state
statutes, and the context in which it appears confirms this understanding of the phrase. See, e.g. Cal. Penal Code §
3500 (c) (West Supp. 2000)(Psychotropic drugs also include mind-altering… drugs…"); Minn. Stat. Ann. § 260B.201(b) (West
Supp. 2002) ("chemical dependency treatment" define as programs designed to "reduce[e] the risk of the use of alcohol,
drugs, or other mind-altering substances").
(U) This subparagraph, section 2340(2)(B), however, does not preclude any and all use of drugs. Instead, it prohibits
the use of drugs that "disrupt profoundly the senses or the personality". To be sure, one could argue that this phrase
applies only to "other procedures", not the application of mind-altering substances. We reject this interpretation
because the terms of Section 2340(2) expressly indicate that the qualifying phrase applies to both "other procedures"
and the "application of mind-altering substances." The word "other" modifies "procedures calculated to disrupt
profoundly the senses". As an adjective, "other" indicates that the term or phrase it modifies is the remainder of
several things. See Webster’s Third New International Dictionary 1598 (1986) (defining "other" as "being the one (as of
two or more) remaining or not included"). Or put another way, "other" signals that the words to which it attaches are of
the same kind, type, or class as the more specific item previously listed. Moreover, where a statute couple words or
phrases together, it "denotes an intention that they should be understood in the same general sense." Norman Singer, 2A
Sutherland on Statutory Construction § 47:16 (6th ed. 2000); see also Beecham v. United States, 511 U.S. 368, 371 (1994)
(that several items in a list share an attribute counsels in favor of interpreting the other items as possessing that
attribute as well.") Thus, the pairing of mind-altering substances with procedures calculated to disrupt profoundly the
sense or personality and the use of "other" to modify "procedures" shows that the use of such substances must also cause
a profound disruption of the senses or personality.
(U) For drugs or procedures to rise to the level of "disrupt[ing] profoundly the sense or personality", they must
produce an extreme effect. And by requiring that they be "calculated" to produce such an effect, the statute requires
that the defendant has consciously designed the acts to produce such an effect. 28 U.S.C. § 2340(2)(B). The word
"disrupt" is defined as "to break asunder; to part forcibly; rend," imbuing the verb
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with a connotation of violence. Webster’s New International Dictionary 753 (2d ed 1935); see Webster’s Third new
International Dictionary 656 (1986) (defining disrupt as "to break apart: Rupture" or "destroy the unity or wholeness
of"); IV the Oxford English Dictionary 832 (1989) (defining disrupt as"[t]o break or burst asunder, to break in pieces;
to separate forcibly"). Moreover, disruption of the senses or personality alone is insufficient to fall within the scope
of this subsection; instead, that disruption must be profound. The word "profound" has a number of meanings, all of
which convey a significant depth. Webster’s New International Dictionary 1977 (2 ed. 1935 defines profound as: "Of very
great depth; extending far below the surface or top; unfathomable [:]…[c]oming from, reaching to, or situated at a depth
of more than ordinary depth; not superficial; deep-seated; chiefly with reference to the body; as a profound sigh,
wounded, or pain[;]…[c]haracterized by intensity, as of feeling or quality; deeply felt or realized; as, profound
respect, fear, or melancholy; hence, encompassing; thoroughgoing; complete; as, profound sleep, silence, or ignorance."
See Webster’s Third New International Dictionary 1812 (1986) ("having very great depth: extending far below the
surface…not superficial"). Random House Webster’s Unabridged Dictionary 1545 (2d ed. 1999) also defines profound as
"originating in or penetrating to the depths of one’s being" or "pervasive or intensive; thorough; complete" or
"extending, situated, or originating far down, or far beneath the surface." By requiring that the procedures and the
drugs create a profound disruption, the statute requires more than the acts "forcibly separate" or "rend" the senses or
personality. Those acts must penetrate to the core of an individual’s ability to perceive the world around him,
substantially interfering with his cognitive abilities, or fundamentally alter his personality.
(U) The phrase "disrupt profoundly the senses or personality" is not used in mental health literature nor is it derived
from elsewhere in U.S. law. Nonetheless, we think the following examples would constitute a profound disruption of the
senses or personality. Such an effect might be seen in a drug-induced dementia. In such a state, the individual suffers
from significant memory impairment, such as the inability to retain any new information or recall information about
things previously of interest to the individual. See DSM-IV at 134. This impairment is accompanied by one or more of the
following: deterioration of language function, e.g., repeating sounds or words over and over again; impaired ability to
execute simple motor activities, e.g., inability to dress or wave goodbye; "[in]ability to recognize [and identify]
objects such as chairs or pencils" despite normal visual functioning, or "[d]isturbances in executive level
functioning", i.e., serious impairment of abstract thinking. Id. At 134-35. Similarly, we think that the onset of "brief
psychotic disorder" would satisfy this standard. See id. At 302-03. I this disorder, the individual suffers psychotic
symptoms, including among other things, delusions, hallucinations, or even a catatonic state. This can last for one day
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(U) Published by the American Psychiatric Association, and written as a collaboration of over a thousand psychiatrists,
the DSM-IV is commonly used in U.S. courts as a source of information regarding mental health issues and is likely to be
used in trial should charges be brought that allege this predicate act. See, e.g., Atkins v. Virginia, 122 S. Ct. 2242,
2245 n. 3 (2002); Kansas V. Crane, 122 S. Ct. 867, 871 (2002); Kansas v. Hendricks, 521 U.S. 346, 359-60 )1997); McClean
v. Merrifield, No. 00-CV-0120E (SC), 2002 WI 1477607 at #2n.7 (W.D.N.Y. June 28, 2002); Peeples v. Coastal Office
Prods., 203 F. Supp 2d 432, 439 (D. Md 2002); Lassiegne v. Taco Bell Corp., 202 F. Supp 2d 512, 519 (E.D. La. 2002).
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or even one month. See id. We likewise think that the onset of obsessive-compulsive disorder behaviors would rise to
this level. Obsessions are intrusive thoughts unrelated to reality. They are not simple worries, but are repeated doubts
or even "aggressive or horrific impulses." See id. at 418. The DSM-IV further explains that compulsions include
"repetitive behaviors" (e.g., hand washing, ordering, checking)" and that "[b]y definition, [they] are either clearly
excessive or are not connected in a realistic way with what they are designed to neutralize or prevent", See id. Such
compulsions or obsessions must be "time-consuming", See is at 419. Moreover, we think that pushing someone to the brink
of suicide (which could be evidenced by acts of self-mutilation). Would be a sufficient disruption of the personality to
constitute a "profound disruption". These examples, of course, are in no way intended to be an exhaustive list. Instead
they are merely intended to illustrate the sort of mental health effects that we believe would accompany an action
severe enough to amount to one that "disrupt[s] profoundly the sense or the personality."
(U) The third predicate act listed in Section 2340 (2) is threatening an individual with "imminent death", 18 U.S.C. §
2340(2)©. The plain text makes clear that a threat of death alone is insufficient; the threat must indicate that death
is "imminent". The "threat of imminent death" is found in the common law as an element of the defense of duress. See
Bailey, 444 U.S. at 409. "[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning
of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word
in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless
otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted
definitions, not as a departure from them." Morissette v. United States, 342 U.S. 246, 263 (1952). Common law cases and
legislation generally define "imminence" as requiring that the threat be almost immediately forthcoming. 1 Wayne R.
LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.7, at 655 (19860. By contrast, threats referring vaguely to things
that might happen in the future do not satisfy this immediacy requirement. See United States v. Fiore, 178 F. 3rd 917,
923 (7th Cir. 1999). Such a threat fails to satisfy this requirement not because is it too remote in time but because
there is a lack of certainty that it will occur. Indeed, timing is an indicator of certainty that the harm will be fall
the defendant. Thus, a vague threat that someday the prisoner might be killed would not suffice. Instead, subjecting a
prisoner to mock executions or playing Russian roulette with him would have sufficient immediacy to constitute a threat
of imminent death. Additionally, as discussed earlier, we believe that the existence of a threat must be assessed from
the perspective of a reasonable person in the same circumstances.
(U) Fourth, if the official threatens to do anything previously described to a third party, or commits such an act
against a third party, that threat or action san serve as the necessary predicate for prolonged mental harm. See 18
U.S.C. § 2340 (2)(D). The statute does not require any relationship between the prisoner and the third party.
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2.
Other Federal Crimes that Could Relate to Interrogation Techniques
(U) Through the SMTJ, the following federal crimes are generally applicable to actions by military or civilian
personnel; murder (18 U.S.C. § 1111), manslaughter (18 U.S.C. § 1112, assault (18 U.S.C. § 113), maiming (18 U.S.C. §
114), kidnapping (18 U.S.C. § 1201). These, as well as war crimes (18 U.S.C. § 2441)14 and conspiracy (18 U.S.C. § 371),
are discussed below.
a.
Assaults within maritime and territorial jurisdiction, 18 U.S.C. § 1139
(U) 18 U.S.C. § 113 proscribes assault within the special maritime and territorial jurisdiction. Although section 113
does not define assault, courts have construed the term "assault" in accordance with that term’s common law meaning.
See, e.g., United States v. Estrada-Fernandez, 150F.3d 491,494 n.1 (5th Cir. 1998); United States v., 150 Juvenile-Male,
930 F.2d 727, 728 (9th Cir. 1991). At common law an assault is an attempted battery or an act that puts another person
in reasonable apprehension of bodily harm. See e.g., United States v. Bayes, 210 F.3d 64, 68 (1st Cir. 2000). Section
113 reaches more than simple assault, sweeping within its ambit acts that would at common law constitute battery.
(U) 18 U.S.C § 113 proscribes several specific forms of assault. Certain variations require specific intent, to wit:
assault with intent to commit murder (imprisonment for not more than twenty years); assault with intent to commit any
felony (except murder and certain sexual offenses) (fine and/or imprisonment for not more than ten years); assault with
a dangerous weapon, with intent to do bodily harm, and without just cause or excuse (fine and/or imprisonment for not
more than ten years, or both). Other defined crimes require only general intent, it wit: assault by striking, beating,
or wounding(fine and/or imprisonment for not more than six months); simple assault (fine and/or imprisonment for not
more than six months), or if the victim of the assault is an individual who has not attained the age of 16 years (fine
and/or imprisonment for not more than 1 year); assault resulting in serious bodily injury (fine and/or imprisonment for
not more than ten years); assault resulting in serious bodily injury to an individual who has not attained the age of 16
years (fine and/or imprisonment for not more than 5 years). "Substantial bosily injury" means bodily injury which
involves (A) temporary but substantial disfigurement; (B) extreme physical pain; (C) protracted and obvious
disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
"Bodily injury" means (A) a cut, abrasion, bruise, burn, or disfigurement; (B) physical pain; (C) illness; (D)
impairment of
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14 (U) 18 U.S.C. § 2441 criminalizes the commission of war crimes by U.S. national and members of the U.S. Armed Forces.
Subsection (c) defines war crimes as (1) grave breaches of any of the Geneva Conventions: (2) conduct prohibited by the
Hague Convention IV, Respecting the Law and Customs of War on Land, signed 18 October 1907; or (3) conduct that
constitutes a violation of common Article 3 of the Geneva Conventions. The Department of Justice has opined that this
statute does not apply toward al-Qaida or Taliban operatives because the President has determined that they are not
entitled to the protections of Geneva and Hague Regulations.
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the function of a bodily member, organ, or mental faculty; or (E) any other injury to the body, no matter how temporary.
b.
Maiming, 18 U.S.C. § 114
(U) Whoever with intent to torture (as defined in section 2340), maims, or disfigures, cuts, bites, or slits the nose,
ear, or lip, or cuts out or disables the tongue, or puts out or destroys and eye, or cuts off or disables a limb or any
member of another person’ or whoever, and with like intent, throws or pours upon another person, any scalding water,
corrosive acid, or caustic substance shall be fines and/or imprisoned not more than twenty years. This is a specific
intent crime.
c.
Murder, 18 U.S.C. § 1111
(U) Murder is the unlawful killing of another human being with malice aforethought. Every murder perpetrated by poison,
lying in wait, or nay other kind of willful, deliberate, malicious, and premeditated killing; or committed in the
perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage,
aggravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and
maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any
other murder is murder in the second degree. If within the SMTJ, whoever is guilty of murder in the first degree shall
be punished by death or by imprisonment for life; whoever is guilty of murder in the second degree, shall be imprisoned
for any term of years or for life. Murder is a specific intent crime.
d.
Manslaughter, 18 U.S.C. § 1112
(U) Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: (A) voluntary, upon a
sudden quarrel or heat of passion and (B) involuntary, in the commission of an unlawful act amounting to a felony, or in
the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce
death.
(U) If within the SMTJ whoever is guilty of voluntary manslaughter, shall be fined and/or imprisoned not more than ten
years; whoever is guilty of involuntary manslaughter, shall be fined and/or imprisoned not more than six years.
Manslaughter is a general intent crime. A death resulting from the exceptional interrogation techniques may subject the
interrogator to a charge of manslaughter, most likely of the involuntary sort.
e.
Interstate Stalking, 18 U.S.C. § 2261A
(U) 18 U.S.C. § 2261A provides that "[w]hoever…travels…within the special maritime and territorial jurisdiction of the
United States…with the intent to kill, injure, harass, or intimidate another person, and in the course of or as a result
of, such travel
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places that person in reasonable fear of the death of, or serious bodily injury of that person." Thus there are three
elements to a violation of 2261A: (1) defendant traveled in interstate commerce; (2) he did do with the intent to
injure, harass, intimidate another person; (3) the person he intended to harass or injure was reasonably place in fear
of death or serious bodily injury as a result of that travel. See United States v. Al-Zubaidy, 283 F.3d 804, 808 (6th
Cir, 2002).
(U) The travel itself must have been undertaken with the specific intent to harass or intimidate another. Or put another
way, at the time of the travel itself, the defendant must have engaged in that travel for the precise purpose of
harassing another person. See Al-Zubaidy, 283 F.3d at 809 (the defendant "must have intended to harass or injure [the
victim] at the time he crossed the state line").
(U) The third element is not fulfilled by the mere act of travel itself. See United States v. Crawford, No.
00-Cr-59-B-S, 2001 WL 185140 (D. Me. Jan. 26, 2991) ("A plain reading of the statute makes clear that the stature
requires the actor to place the victim in reasonable fear, rather than, as Defendant would have it, that his travel
place the victim in reasonable fear.")
(U) It is unlikely that this statute’s purpose is aimed at interrogations.
f.
Conspiracy, 18 U.S.C. § 2 and 18 U.S.C. § 371(15)
(U) Conspiracy to commit crime is a separate offense from crime that is the object of conspiracy.(16) Therefore, where
someone is charged with conspiracy, a conviction cannot be sustained unless the Government establishes beyond a
reasonable doubt that the defendant had the specific intent to violate the substantive statute.(17)
(U) As the Supreme Court most recently stated, "the essence of a conspiracy is ‘an agreement to commit an unlawful
act.’" Untied States v. Jimenez Recio, --S.Ct. - , 2003 WL 139612 at *-- (Jan. 12, 2003) (quoting Iannelli V. United
States, 420 U.S. 770, 777 (1975). Moreover, "[t]hat agreement is a ‘distinct evil,’ which ‘may exist and be punished
----------
(U) 18 U.S.C. § 2. Principals
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense
against the United States, is punishable as a principal.
18 U.S.C. § 371. Conspiracy to commit offense or to defraud the United States.
If two or more persons conspire either to commit any offense against the United States, or to defraud the United
States, or any agency thereof in any manner for any purpose, and one or more of such persons do any act to effect the
object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment
for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
(U) United States v. Rabbinowich, 238 US 78, 59, 35 S.Ct 682, L. Ed 1211 (1915).
(U) United States v. Cangiano, 491 F.2d 906 (2nd Cir, 1974), next denied 419 U.S. 904 (1974).
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Whether or not the substantive crime ensues", Id at* (quoting Salinas v. United States, 522 U.S. 52, 65 (1977).
3.
Legal doctrines under the Federal Criminal Law that could render specific
conduct, otherwise criminal, not unlawful
(U) Generally, the following discussion identifies legal doctrines and defenses applicable to the interrogation of
unlawful combatants, and the decision process related to them. In practice, their efficacy as to any person or
circumstances will be fact-dependent.
a.
Commander-in-Chief Authority
(U) As the Supreme Court has recognized, and as we will explain further below, the President enjoys complete discretion
in the exercise of his Commander-in-Chief authority including in conducting operations against hostile forces. Because
both "[t]he executive power and the command of the military and naval forces is vested in the President," the Supreme
Court has unanimously stated that it is "the President alone who is constitutionally invested with the entire charge of
hostile operations." Hamilton v. Dillin, 88 U.S. (21 Wall.) 73 (1874) (emphasis added).
(U) In light of the President’s complete authority over the conduct of war, without a clear statement otherwise,
criminal statutes are not read as infringing on the President’s ultimate authority in these areas. The Supreme Court has
established a canon of statutory construction that statutes are to be constructed in a manner that avoids constitutional
difficulties so long as a reasonable alternative construction is available, See, e.g., Edward J. DeBartolo Corp. v.
Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (citing NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501
(1979) ) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems,
[courts] will construe [a] statute to avoid such problems unless such construction is plainly contrary to the intent of
Congress.") this canon of construction applies especially where an act of Congress could be read to encroach upon powers
constitutionally committed to a coordinate branch of government. See, e.g. Franklin v. Massachusetts, 505 U.S. 788,
800-1 (1992) (citation omitted) ("Out of respect for the separation of powers and the unique constitutional position of
the President, we find that textual silence is not enough to subject the President to the provisions of the
[Administrative Procedure Act]. We would require an express statement by Congress before assuming it intended for the
President’s performance of this statutory duties to be reviewed for abuse of discretion."); Public Citizen V. United
States Dep’t of Justice, 491 U.S. 440, 465-67 (19890 (construing Federal Advisory Committee Act not to apply to advice
given by American Bar Association to the President on judicial nominations, to avoid potential constitutional question
regarding encroachment on Presidential power to appoint judges).
(U) In the area of foreign affairs, and war powers in particular, the avoidance canon has special force. See, e.g.,
Dept of Navy v. Egan 484 U.S. 518, 530 (1988) ("unless Congress specifically has provided otherwise, courts
traditionally have been
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Reluctant to intrude upon the authority of the Executive in military and national security affairs."); in Japan Whaling
Ass’n v. American Cemcean Socy, 478 U.S. 221, 232-33 (1986) (construing federal statutes to avoid curtailment of
traditional presidential prerogatives in foreign affairs). It should not be lightly assumed that Congress has acted to
interfere with the President’s constitutionally superior position as Chief Executive and Commander-in-Chief in the area
of military operations. See Egan, 484 U.S. at 529 (quoting haig V. Agee, 1453 U.S. 280, 293-94 (1981). See also Agee,
453 U.S. at 291 (deference to Executive Branch is "especially" appropriate "in the area of national security").
(U) In order to respect the President’s inherent constitutional authority to manage a military campaign, 18 U.S.C. §
2340A (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his
Commander-in-Chief authority. Congress lacks authority under Article I to set the terms and conditions under which the
President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war. The
President’s power to detain and interrogate enemy combatants arises out of his constitutional authority as
Commander-in-Chief. A construction of Section 2340A that applied the provision to regulate the President’s authority as
Commander-in-Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional
questions. Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may
regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe Section 2340A to avoid
this constitutional difficulty, and conclude it does not apply to the President’s detention and interrogation of enemy
combatants pursuant to his Commander-in-Chief authority.
(U) This approach is consistent with previous decisions of the DOJ involving the application of federal criminal law.
For example, DOJ has previously construes the congressional contempt statute as inapplicable to executive branch
officials who refuse to comply with congressional subpoenas because of an assertion of executive privilege. In a 1984
opinion, DOJ concluded that
if executive officials were subject to prosecution for criminal contempt whenever they carried out the President’s claim
of executive privilege, it would significantly burden and immeasurably impair the President’s ability to fulfill his
constitutional duties. Therefore, the separation of powers principles that underlie the doctrine of executive privilege
also would preclude an application of the contempt of Congress to punish officials for aiding the President in asserting
his constitutional privilege.
Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted A Claim of Executive Privilege,
8:Op O.L.C. 101, 143 (May 30, 1984). Likewise, if executive officials were subject to prosecution for conducting
interrogations when they were carrying out the President’s Commander-in-Chief powers, "it would significantly burden and
immeasurably impair the President’s ability to fulfill his constitutional duties." These constitutional principles
preclude an application of Section 2340A to
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punish officials for aiding the President in exercising his exclusive constitutional authorities. Id.
(U) It could be argued that Congress enacted 18 U.S.C. § 2340A with full knowledge and consideration of the President’s
Commander-in-Chief power, and that Congress intended to restrict his discretion; however, the Department of Justice
could not enforce Section 2340A against federal officials acting pursuant to the president’s constitutional authority to
wage a military campaign. Indeed, in a different context, DOJ has concluded that both courts and prosecutors should
reject prosecutions that apply federal criminal laws to activity that is authorized pursuant to one of the President’s
constitutional powers. DOJ, for example, has previously concluded that Congress could not constitutionally extend the
congressional contempt statute to executive branch officials who refuse to comply with congressional subpoenas because
of an assertion of executive privilege. They opined that "courts…would surely conclude that a criminal prosecution for
the exercise of a presumptively valid, constitutionally based privilege is not consistent with the Constitution." 8 Op
O.L.C. at 141. Further, DOJ concluded that it could not bring a criminal prosecution against a defendant who had acted
pursuant to an exercise of the President’s constitutional power. "The President, through a United States Attorney, need
not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege. Nor
could the Legislative Branch or the courts require or implement the prosecution of such an individual." Id. Although
Congress may define federal crimes that the President, through the Take Care Clause, should prosecute, Congress cannot
compel the President to prosecute outcomes taken pursuant to the President’s own constitutional authority. If Congress
could do so, it could control the President’s authority through the manipulation of federal criminal law.
(U) There are even greater concerns with respect to prosecutions arising out of the exercise of the President’s express
authority as Commander-in-Chief than with prosecutions arising out of the assertion of executive privilege. In a series
of opinions examining various legal questions arising after September 11, 2001, DOJ explained the scope of the
President’s Commander-in-Chief power. We briefly summarize the findings of those opinions here. The President’s
constitutional power to protect the security of the United States and the lives and safety of it’s people must be
understood in light of the Founder’s intention to create a federal government "cloathed with all the powers requisite to
the complete execution of It’s trust." The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed. 1961).
Foremost among the objectives committed to that trust by the Constitution is the security of the nation. As Hamilton
explained in arguing for the Constitution’s adoption, because "the circumstances which may affect the public safety" are
not reducible within certain determinate limits,
it must be admitted, as necessary consequences, that there can be no limitations of that authority, which is to provide
for the defense and protection of the community, in any matter essential to its efficacy.
Id. at 147-48. Within the limits that the Constitution itself imposes, the scope and distribution of the powers to
protect national security must be construed to authorize the
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most efficacious defense of the nation and its interests in accordance "with the realistic purposes of the entire
instrument." Lichter v. United States, 334 U.S. 742, 782 (1948).
(U) The text, structure, and history of the Constitution establish that the Founders entrusted the President with the
primary responsibility, and therefore the power, to ensure the security of United States in situations of grave and
unforeseen emergencies. The decision to deploy military force in the defense of the United States interests is expressly
placed under Presidential Authority by the Vesting Clause, U.S. Const. Art I § 1, cl. 1, and by the Commander-in-Chief
Clause, id., § 2, cl. 1. (18) DOJ has long understood the Commander-in-Chief Clause in particular as an affirmative
grant of authority to the President. The Framers understood the Clause as investing the President with the fullest range
of power understood at the time of the ratification of the Constitution as belonging to the military commander. In
addition, the Structure of the Constitution demonstrates that any power traditionally understood as pertaining to the
executive which includes the conduct of warfare and the defense of the nation unless expressly assigned in the
Constitution to Congress, is vested in the President. Article II, Section 1 makes this clear by stating that the
"executive Power shall be vested in a President of the United States of America." That sweeping grant vests in the
President an unenumerated "executive power" and contrasts with the specific enumeration of the powers-those "herein"
granted to Congress in Article I. The implications of constitutional text and structure are confirmed by the practical
consideration that national security decisions require the unity in purpose and energy in action that characterize the
Presidency rather than Congress. (19)
----------
(U) See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President has authority to deploy United States armed forces
"abroad or to any particular region"); Fleming v. Page, 50 U.S. (9 Flow) 603, 614-15 (1950) ("As commander-in-chief,
[the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and
to employ them in a manner he may deem most effective") Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia, J.,
concurring in part and concurring in judgment)(The inherent powers of the Commander-in-Chief "are clearly extensive."):
Maul v. United States, 274 U.S. 501, 515-16 (1927) (Brandeis & Holmes J.T., concurring)(President "may direct any revenue cutter to cruise in any water in order to perform any duty
of the service"); Commonwealth Massachusetts v. Laird, 451 F.2d 26, 32 (1st Cir. 1971) (the President has "power as
Commander-in-Chief to station forces abroad"); Ex parte Vallandigham, 28 F. Cas. 874, 922 (C.C.B.D. Ohio (1863)(No.
16,816) (in acting "under his power where there is no express legislative declaration, the president is guided solely by
his own judgement and discretion"); Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6,G (Dec.
4, 1992) (Barr, attorney General).
(U) Judicial decisions since the beginning of the Republic confirm the President’s constitutional power and duty to
repel military action against the United States and to take measures to prevent the reoccurrence of an attack. As
Justice Joseph Story said long ago, "[I]t may be fit and proper for the government, in the exercise of the high
discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an
irreparable mischief, by summoning measures, which are not found in the text of the laws." The Apallon, 22 U.S. (9
Wheat) 362, 366-67 (1824). If the President is confronted with an unforeseen attack on the territory and people of the
United States, or other immediate dangerous threat to American interests and security, it is his constitutional
responsibility to respond to that threat with whatever means are necessary. See e.g., The Prize Cases, 67 U.S. (2 Black)
635, 668 (1862)("If a war be made by invasion or a foreign nation, the President is not only authorized but bound to
resist force by force…without waiting for any special legislative authority."); United States v. Smith, 27 F. Cas; 1192,
1229-30 (C.C.D.N.Y., 1.-06)(No. 16,342)(Paterson, Circuit Justice)(regardless of statutory authorization, it is "the
duty…of the executive magistrate - to repel an invading foe") see also 3 Story, Commentaries 6, 1485 ("[t]he command and
application of the public force…to maintain peace, and to resist foreign invasion" are executive powers).
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(U) As the Supreme Court has recognized, the Commander-in-Chief power and the President’s obligation to protect the
nation imply the ancillary powers necessary to their successful exercise. "The first of the enumerated powers of the
President is that he shall be Commander-in-Chief of the Army and Navy of the United States. And of course, the grant of
war power includes all that is necessary and proper for carrying those powers into execution." Johnson v. Eisentrager,
339 U.S. 763, 788 (1950). In wartime it is for the President alone to decide what methods to use to best prevail against
the enemy. The President’s complete discretion in exercising the Commander-in-Chief power has been recognized by the
courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court explained that whether the
President, "in fulfilling his duties as Commander in Chief", had appropriately responded to the rebellion of the
southern states was a question" to be decided by him" and which the Court could not question, but must leave to "the
political department of the Government to which this power was entrusted".
(U) One of the core functions of the Commander-in-Chief is that of capturing, detaining, and interrogating members of
the enemy. It is well settled that the President may seize and detain enemy combatants, at least for the duration of the
conflict, and the laws of war make clear that prisoners-may be interrogated for information concerning the enemy, its
strength, and its plans. Numerous Presidents have ordered the capture, detention, and questioning of enemy combatants
during virtually every major conflict in the Nation’s history, including recent conflicts in Korea, Vietnam, and the
Persian Gulf. Recognizing this authority, Congress has never attempted to restrict or interfere with the President’s
authority on this score.
(U) Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole
vesting of the Commander-in-Chief authority in the President. There can be little doubt that intelligence operations,
such as the detention and interrogation of enemy combatants and leaders, are both necessary and proper for the effective
conduct of a military campaign. Indeed, such operations may be of more importance in a war with an international
terrorist organization than one with conventional armed forces of a nation-state, due to the former’s emphasis on secret
operations and surprise attacks against civilians. It may be the case that only successful interrogations can provide
the information necessary to prevent the success of covert terrorist attacks upon the United States and its citizens.
Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate
strategy or tactical decisions on the battlefield. Just as statutes that order the president to conduct warfare in a
certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from
gaining the intelligence he believes necessary to prevent attacks upon the United States.
(U) As this authority is inherent in the President, exercise of it by subordinates would be best if it can be shown to
have been derived from the President’s authority through Presidential directive or other writing.
----------
(U) We note that this view is consistent with that of the Department of Justice.
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b.
Necessity
(U) The defense of necessity could be raised, under the current circumstances, to an allegation of a violation of a
criminal statute. Often referred to as the "choice of evils" defense, necessity has been defined as follows:
conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable,
provided that:
(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law
defining the offense charged; and
(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific
situation involved; and
(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
Model Penal Code 3.02. See also Wayne R. LaFave & Austin W. Scott. I Substantive Criminal Law 5.4 at 627 (1986 &2002 app:)("LaFave & Scott"). Although there is no federal statute that generally establishes necessity or other justifications as defenses
to federal criminal laws, the Supreme Court has recognized the defense. See United States v. Bailey, 444 U.S. 394, 410
(1980) (relying on LaFave & Scott and Model Penal Code definitions of necessity defense).
(U) The necessity defense may prove especially relevant in the current circumstances. As it has been described in the
case law and literature, the purpose4 behind necessity is one of public policy. According to LaFave & Scott, "the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the
greater good for society will be accomplished by violating the literal language of the criminal law." LaFave & Scott, at 629. In particular, the necessity defense can justify the intentional killing of one person to save two
others because "it is better that two lives be saved and one lost than that two be lost and one saved" Id. or, put in
the language of choice of evils, "the evil involved in violating the terms of the criminal law (…even taking another’s
life) may be less than that which would result from literal compliance with the law (…two lives lost)". Id.
(U) Additional elements of necessity defense are worth noting here. First, the defense is not limited to certain types
of harms. Therefore, the harm inflicted by necessity may include intentional homicide, so long as the harm avoided is
greater (i.e., preventing more deaths) Id. at 634. Second, it must actually be the defendant’s intention to avoid the
greater harm: intending to commit murder and then learning only later that the death had the fortuitous result of saving
other lives will not support a necessity defense. Id. at 635. third, if the defendant reasonably believes that the
lesser harm as necessary, even if, unknown to him, it was not, he may still avail himself of the defense,. As LaFave and
Scott explain, "if A kills B reasonably believing it to be necessary to save C and D, he is not guilty of murder eve
though, unknown to A. C and D could have been
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Rescued without the necessity of killing B," Id. Fourth, it is for the court, and not the defendant to judge whether the
harm avoided outweighed the harm done. Id. at 636. fifth, the defendant cannot rely upon the necessity defense if a
third alternative that will cause less harm is open and known to him.
[Area Removed from Document]
(U) Legal authorities identify an important exception to the necessity defense. The defense is available "only in
situations wherein the legislature has not itself, in its criminal statute, made determination of values." Id. at 629.
Thus, if Congress explicitly has made clear that violation of a statute cannot be outweighted by the harm avoided,
courts cannot recognize the necessity defense. LaFave and Israel provide as an example an abortion statute that made
clear that abortions even to save the life of the mother would still be a crime; in such cases the necessity defense
would be unavailable. Id. at 630. Here, however, Congress has not explicitly made a determination of values vis-à-vis
torture. In fact, Congress explicitly removed efforts to remove torture from the weighing of values permitted by the
necessity defense.
----------
In the CAT, torture is defined as the intentional infliction of severe pain or suffering "for such purposes of obtaining
from him or a third person information or a confession." CAT art 1.1 One could argue that such a definition represented
an attempt to indicate that the good of obtaining information - no matter what the circumstances - could not justify an
act of torture. In other words, necessity would not be a defense. In enacting Section 2340, however, Congress removed
the purpose element in the definition of torture, evidencing an intention to remove any fixing of values by statute. By
leaving, Section 2340 silent6 as to the
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c.
Self-Defense
(U) Even if a court were to find that necessity did not justify the violation of a criminal statue, the defendant could
still appropriately raise a claim of self-defense. The right to self-defense, even when it involves deadly force, is
deeply embedded in our law, both as to individuals and as to the nation as a whole. As the Court of Appeals for the D.C.
Circuit has explained:
More than two centuries ago, Blackstone, best known of the expositors of the English common law taught that "all
homicide is malicious, and of course amounts to murder, unless…excused on the account of accident or self preservation".
Self-defense, as a doctrine legally exonerating the taking of human life, is as viable now as it was in Blackstone’s
time.
United States v. Peterson, 483 F.2d 1222, 1228-29 (D.C. Cir. 1973). Self-defense is a common-law defense to federal
criminal law offenses, and nothing in the text, structure or history of Section 2340A precludes its application to a
charge of torture. In the absence of any textual provision to the countrary, we assume self-defense can be an
appropriate defense to an allegation of torture.
(U) The doctrine of self-defense permits the use of force to prevent harm to another person. As LaFave and Scott
explain, one is justified in using reasonable force in defense of another person, even a stranger, when he reasonably
believes that the other is in immediate danger of unlawful bodily harm from his adversary and that the use of such force
is necessary to avoid this danger." Id. at 663-64. Ultimately, even deadly force is permissible, but "only when the
attack of the adversary upon the other, person reasonably appears to the defender to be a deadly attack" Id at 664. As
with our discussion of necessity, we will review the significant elements of this defense. According to LaFave and
Scott, the elements of the defense of others are the same as those that apply to individual self-defense.
----------
harm done by torture in comparison to other harms, Congress allowed the necessity defense to apply when appropriate.
Further, the CAT contains an additional provision that "no exceptional circumstances whatsoever, whether a state of war
or a threat of war, internal political instability or any other public emergency, may be invoke4d as a justification of
torture," CAT art. 2.2 Aware of this provision of the treaty and of the definition of the necessity defense that allows
the legislature to provide for an expection to the defense. See Model Penal Code 3,02(b), Congress did not incorporate
CAT article 2.2 into Section 2-4. Given that Congress omitted CAT’s effort to bar a necessity or wartime defense,
Section 2340 could be read as permitting defense.
(U) Early cases had suggested that in order to be eligible for defense of another, one should have some personal
relationship with the one in need of protection. That view has been discarded. LaFave & Scott at 664.
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(U) First, self-defense requires that the use of force be necessary to avoid the danger of unlawful bodily harm. Id. at
649. a defender may justifiably use deadly force if he reasonably believes that the other person is about to inflict
unlawful death or serious bodily harm upon another, and that it is necessary to use such force to prevent it. Id. at
652. Looked at from the opposite perspective, the defender may not use force when the force would bge as equally
effective at a later time and the defender suffers no harm or risk by waiting. See Paul H.Robinson, 2 Criminal Law
defenses 131(c) at 77 (1984). If, however, other options permit the defender to retreat safely from confrontation
without having to resort to deadly force, the use of force may not be necessary in the first place. LaFave and Scott at
659-60.
(U) Second, self-defense requires that the defendant’s belief in the necessity of using force be reasonable. If a
defendant honestly but unreasonably believed force was necessary, he will not be able to make out a successful claim of
self-defense. Id. at 654. Conversely, if a defendant reasonably believed an attack was to occur, but the facts
subsequently showed no attack was threatened, he may still raise self-defense. As LaFave and Scott explain, "one may be
justified in shooting to death and adversary who, having threatened to kill him, reaches for his pocket as if for a gun,
thou it later appears that he had no gun and that he was only reaching for his handkerchief." Id. Some authorities such
as the Model Penal Code, even eliminate the reasonability element, and require only that the defender honestly believed
regardless of its reasonableness - that the use of force was necessary.
(U) Third, many legal authorities include the requirement that a defender must reasonably believe that the unlawful
violence is "imminent" before he can use force in his defense. It would be a mistake, however, to equate imminence
necessarily with timing that an attack is immediately about to occur. Rather, as the Model Penal Code explains, what is
essential in that the defensive response must be "immediately necessary." Model Penal Code 3.04(1). Indeed, imminence
must be merely another way of expressing the use of force may be justified. To use a well-known hypothetical, if A were
to kidnap and confine B, and then tell B he would kill B one week later, B would be justified in using force in
self-defense, even if the opportunity arose before the week had passed. Id. at 656; see also Robinson at 131(c)(1) at
78. In this hypothetical, while the attack itself is not imminent, B’s use of force becomes immediately necessary
whenever he has an opportunity to save himself from A.
(U) Fourth, the amount of force should be proportional to the threat. As LaFave and Scott explain, "the amount of force
which [the defender] may justifiably use must be reasonably related to the threatened harm which he seeks to avoid."
LaFave and Scott at 651. thus, one may not use deadly force in response to a threat that does not rise to death or
serious bodily harm. If such harm may result however, deadly force is appropriate.
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is almost indispensable to every military system. But this implies obedience to lawful orders only. If the act done
pursuant to a superior’s orders be murder, the production of the order will not make it any less so. It may mitigate but
it cannot justify the crime. We are of this view, however, that if the illegality of the order was not known to the
inferior, and he could not reasonably have been expected to know of its illegality, no wrongful intent necessary to the
commission of the crime exists and the inferior [sic] will be protected. But the general rule is the members of the
armed forces are bound to obey only the lawful orders of their commanding officers and they cannot escape criminal
liability obeying a command which violates international law and outrages fundamental concepts of justice.
The Hostage Case (United States v. Wilhelm List et. al.)
(U) The international Military Tribunal at Nuremberg declared in its judgment that the test of responsibility for
superior orders "is not the existence of the order, but whether moral choice was in fact possible."
(U) domestically, the UCMJ discusses the defenses of superior order in The Manual Courts-Martial, which provides in
R.C.M. 916(d), MCM 2002:
It is a defense to any offense that the accused was acting pursuant to orders unless the accused know the orders to be
unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful. An act performed
pursuant to a lawful order is justified. An act performed pursuant to an unlawful order is excused unless the accused
knew it to be unlawful or a person of ordinary sense and understanding would have know the orders to be unlawful.
Inference of lawfulness. An order requiring the performance of a military duty or act may be inferred to be lawful and
it is disobeyed at the peril of the subordinate.
(U) In sum, the defense of superior orders will generally be available for U.S. Armed Forces personnel engaged in
exceptional interrogations except where the conduct goes so far as to be patently unlawful.
----------
(U) Trial of Major War Criminals before the International Military Tribunal, Nuremberg 14 November 1945-1 October 1946
at 224 (1947), excerpted in U.S. Naval War College, International Law Documents, 1946-1947, at 260 (1948).
(U) This inference does not apply to a patently illegal order, such as one that directs the confession of a crime.
(Article 90, UCMJ).
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A.
Lack of DOJ Representation for DOD Personnel Charged with a Criminal Offense
(U) DOJ representation of a defendant is generally not available in federal criminal proceedings, even when the
defendant’s actions occur within the scope of federal employment.
B. Federal Civil Statutes
1. 28 U.S.C. 1350
(U) 28 U.S.C. 1350 extends the jurisdiction of the U.S. District Courts to "any civil action by an alien for a
tort only, committed in violation of the law of nations or a treaty of the United States". Section 1350 is a vehicle by
which victims of torture and other human rights violations by their native government and its agents have sought
judicial remedy for the wrongs they’ve suffered. However, all the decided cases we have found involve foreign nationals
suing in U.S. District Courts for conduct by foreign actors/governments. The District Court for the District of Columbia
has determined that section 1350 actions, by the GTMO detainees, against the United States or its agents acting within
the scope of employment fail. This is because (1) the United States has not waived sovereign immunity to such suits like
those brought by the detainees, and (2) the Eisentrager doctrine barring habeas access also precludes other potential
avenues of jurisdiction. This of course leaves interrogators vulnerable in their individual capacity for conduct a court
might find tortuous. Assuming a court would take jurisdiction over the matter and grant standing to the detainee, it is
possible that this statute would provide an avenue of relief for actions of the United States or its agents found to
violate customary international law. The application of international law, specifically that which might be considered
custom, is discussed supra in Section IV at "International Considerations that May Affect Policy Determinations";
2. Torture Victims Protection Act (TVPA
(U) In 1992, President Bush signed into law the Torture Victims Protection Act of 1991. Appended to the U.S. Code as a
note to section 1350, the TVPA specifically creates a cause of action for individuals (or their successors) who have
been subjected to torture or extra-judicial killing by "an individual who, under actual or apparent authority,
----------
(U) 28 CFR 50.15 (a)(4)
(U) 28 U.S.C 1350, the Alien Tort Claim Act (ATCA).
(U) See, for example, Ababe-Jva v. Negano, No 93-9133. United States Court of Appeals, Eleventh Circuit, Jan 10, 1996 In
this case the 11th Circuit concluded, "the Alien Tort Claims Act establishes a federal forum where courts may fashion
domestic common law remedies to give effect to violations of customary international law."
(U) Al Odah v. United States, (D.D.C., 2002)
(U) Filartiga v Pena-Irale, 630 F.2d 76 (2nd Cir. 1980) 885, note I, "conduct of the type alleged here [torture] would
be actionable under 42 U.S.C. 1983, or undoubtedly the Constitution, if performed by a government official."
(U)Pub. I. No. 102-256, 106 Stal. 73, 28 U.S.C 1350 (note).
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or color of law, of any foreign nation (1) subjects an individual to torture shall in a civil action, be liable for
damages to that individual; or (2) subjects an individual to extra judicial in a civil action, be liable for damages…."
(emphasis added) It thus appears that the TVPS does not apply to the conduct of U.S. agents acting under the color of
law.
C.
Applicability of the United States Constitution
1.
Applicability o the Constitution to aliens Outside the United States
(U) Nonresident enemy aliens do not enjoy constitutional rights outside the sovereign territory of the United States.
The courts have held that unlawful combatants do not gain constitutional rights upon transfer to GTMA as unlawful
combatants merely because the U.S. exercises extensive dominion and control over GTMA. Moreover, rights apply to aliens
only on sovereign U.S. territory. (See discussion under "Jurisdiction of Federal Courts", infra)
(U) Although U.S. cvonstitutional rights do not apply to aliens at GTMO, the Ul.S. criminal laws do apply to acts
committed there by virtue of GTMO’s status as within the special maritime and territorial jurisdiction.
2.
The Constitution Defining U.S. Obligations Under International Law
(U) In the course of taking reservations to the Convention Against Torture and Other Cruel, and Inhuman or Degrading
Treatment or Punishment, the United States determined that the Conventionw’s prohibitions against cruel, inhuman or
degrading treatment or punishment applied only to the extent that such conduct was prohibited by the Fifth, Eighth and
Fourteenth Amendments to our Constitition. Consequently, analysis of these amendments is significant in determining the
extent to which the United States is bound by the Convention. It should be clear, however, that aliens held at GTMO do
not have constitutional rights under the 5th Amendment’s Due Process clause
----------
(U) The definition of torture used in PL 102-256(a) "any act, directed against an individual in the offender’s custody
or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in,
or incidental to lawful sanctions) whether physical or mental, is intentionally inflicted on that individual for such
purposes as obtaining from that individual or a third person information or a confession, punishing that individual for
an act that individual or a third person has committed or is suspected of having committed,, intimidating or coercing
that individual or a third personk, or for any reason based on discrimination of any king." This is similar but broader,
than the definition in the Torture Statute. The definition of mental pain and suffering is the same as in the Torture
Statute.
(U) Eisenstrager 764.
(U) Al Odah v. United States, (D.D.C., 2002).
(U) Articles of ratification, 21 Oct 1994: "Il. The Senate’s advice and consent is subject to the following
reservations: (1) That the United States considers itself bound by the obligation under article 16 to prevent "cruel,
inhuman, or degrading treatment or punishment", means the cruel, unusual and inhumane treatment or punishment prohibited
by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States" available at the UN
documents site: http://193.194.138.190/html/menu3/treaty12_asp.htm
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or the 8th Amendment. See, Johnson v. Eisenberger, 339 U.S. 763 (1950) and Verdugo-Urquidez, 494 U.S. 259 (1990).
a.
Eighth Amendment
(U) "An examination of the history of the Amendment and the decisions of this [Supreme] Court construing the
proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes"
The import of this holding is that, assuming a detainee could establish standing to challenge his treatment the claim
would not lie under the 8th Amendment. Accordingly, it does not appear detainees could successfully pursue a claim
regarding their pre-conviction treatment under the Eighth Amendment.
(U) The standards of the Eighth Amendment are relevant, however, due to the U.S. Reservation to the Torture Convention’s
definition of cruel, inhuman, and degrading treatment. Under "cruel and unusual punishment" jurisprudence, there are two
lines of analysis: (1) conditions of confinement, and (2) excessive force. As a general matter, the excessive fore
analysis applies to the official use of physical force, often in situations in which an inmate has attacked another
inmate or a guard whereas the conditions of confinement analysis applies to such things as administrative segregation.
Under the excessive force analysis, "a prisoner alleging excessive for4ce must demonstrate that the defendant acted
"maliciously and sadistically to cause harm." Porter v. Nussle, 534 U.S. 516, 528 (2002)(quoting Hudson v. McMillan; 503
U.S.. 1, at 7). Excessive force requires the unnecessary and wanton infliction of pain. Whitney v. Albers, 475, U.S.
312, 319 (1986).
(U) A condition of confinement is not "cruel and unusual" unless it (1) is "sufficiently serious" to implicate
constitutional protection, id. at 347, and (2) reflects "deliberate indifference" to the prisoner’s health or safety,
Farmer v Brennan 511 U.S. 825, 834 (1994). The first element is objective, and inquires whether the challenged condition
is cruel and unusual. The second, so-called "subjective’ element requires examination of the actor’s intent and inquires
whether the challenged condition is imposed as punishment. Wilson v. Selter, 501 U.S. 294, 300 (1991) ("The source of
the intent requirement is not the predilections of this Court, but the Eighth Amendment itself, which bans only cruel
and unusual punishment. If the pain inflicted is not formally meted out as punishment by the statute or sentencing
judge, some mental element must be attributed to the inflicting officer before it can qualify.")
(U) The Supreme Court has noted that "[n]o static ‘test’ can exist by which courts determine whether conditions of
confinement are cruel and unusual, for the Eighth Amendment must draw its meaning from the evolving standards of decency
that mark the progress of a maturing society." Rhodes, 452 U.S. at 146 (citation omitted). See also Estelle v. Gamble,
429 U.S. 97, 102 (1976)(stating that the Eighth Amendment embodies
----------
(U) Ingraham v. Wright, 430 U.S. 651, 664 (1977). In Ingrahm, a case about corporal punishment in a public junior high
school, the Court analyzed the claim under the 14th amendment’s Due Process clause, concluding that the conduct did not
violate the 14th amendment, even though it involved up to 10 whacks with a wooden paddle.
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"broad and idealistic concepts of dignity, civilized standards, humanity, and decency") Nevertheless, certain guidelines
emerge from the Supreme Court’s jurisprudence.
(U) The court has established that "only those deprivations denying "the minimal civilized measures of life’s
necessities’ sufficiently grave to form the basis of an Eighth Amendment violation." Wilson, 501 U.S. at 298, quoting
Rhodes, 452 U.S. at 347. It is not enough for a prisoner to show that he has been subjected to conditions that are
merely "restrictive and even harsh," as such conditions are simply "part of the penalty that criminal offenders pay for
their offenses against society." Rhodes, 452 U.S. at 347. See also Wilson at 349 (the Constitution does not mandate
comfortable prisons.").. Rather, a prisoner must show that he has suffered a "serious deprivation of basic human needs,"
Id at 347, such as "essential food, medical care, or sanitation," Id. At 348, See also Wilson, 501 U.S. at 304
(requiring "the deprivation of a single, identifiable human need such as food, warmth, or exercise") "The Amendment also
imposes [the duty on officials to] provide humane conditions of confinement; prison officials must ensure that inmates
receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of
the inmates." Farmer, 511 U.S. at 832 (citations omitted). The Court has also articulated an alternative test inquiring
whether an inmate was exposed to "a substantial risk or serious harm." Id. At 837. See also DeSpain v. Uphoff, 264 F.3d
965, 971 (10th Cir. 2001)("In order to sati8sfy the [objective] requirement, the inmate must show that he is
incarcerated under conditions posing a substantial risk of serious harm.")
(U) The various conditions of confinement are not to be assessed under a totality of the circumstances approach. In
Wilson v. Seiter, 501 U.S. 294 (1991), the Supreme Court expressly rejected the contention that "each condition must be
considered as part of the overall conditions challenged." Id. At 304 (internal quotation marks and citation omitted),
Instead the Court concluded that "Some conditions of confinement may establish an Eighth Amendment violation ‘in
combination’ when each would not do so alone, but only when they have a mutually enforcing effect that produces the
deprivation of a single identifiable human need such as food, warmth, or exercise - for example, a low cell temperature
at night combined with a failure to issue blankets." Id. At 304. As the Court further explained, "Nothing so amorphous
as ‘overall conditions’ can rise to the level of cruel and unusual punishment when no specific deprivations of a single
human need exists." Id. at 305.
(U) To demonstrate deliberate indifference, a prisoner must demonstrate "that the official was subjectively aware of
that risk". Farmer v. Brennan 511 U.S. 125 (1994). As the supreme Court further explained:
We hold… that a prison official cannot be found liable under the Eighth Amendment for denying any inmate humane
conditions of confinement unless the official knows of and regards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference can be drawn that a substantial risk of serious harm
exists and he must also draw the inference.
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that "[t]his primitive treatment amount [ed] to [the] gratuitous infliction of ‘wanton and unnecessary’ pain that our
precedent clearly prohibits." Id. at 2515. Thus, the necessity of the government action bears upon both the conditions
of confinement analysis as well as the excessive force analysis.
(U) The government interest here is of the highest magnitude. The typical prison case, the protection of other inmates
or officers, the protection of the inmate alleged to have suffered the cruel and unusual punishment, or even the
maintenance of order in the prison provide valid government interests for various deprivations. See e.g. Anderson v.
Nosser, 438 F.2d 183, 193 (5th Cir. 1971) ("protect[ing] inmates from self-inflicted injury, protect[ing] the general
prison population and personnel from violate acts on his part, prevent[ing] escape" are all legitimate penological
interests that would permit the imposition of solitary confinement); McMahon v. Beard, 583 F.2d 172, 175 (5th Cir. 1978)
(prevention if inmate suicide is a legitimate interest). If the protection of one person or even prison administration
can be deemed to be valid governmental interests in such cases frequently permitted deprivations, it follows a fortiori
that the interest of the United States here - obtaining intelligence vital to the protection of untold thousands of
American citizens - can be no less valid. To be sure, no court has encountered the precise circumstances hereunder
Eighth Amendment jurisprudence. Nonetheless, it can be forcefully argued that there can be no more compelling government
interest than that which is presented here. See Hope v. Pelzer, 122 s. Ct. 2508 (2002) ("The unnecessary and wanton
infliction of pain …constitutes cruel and unusual punishment forbidden by the Eighth Amendment. We have said that among
unnecessary and wanton inflictions of pain are those that are totally without penological justification.")
(U) Fifth Amendment and Fourteenth Amendment"
(U) "It is now the settled doctrine… that the Due Process Clause embodies a system of rights based on moral principles
so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as
conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right
and just"49 Due process is violated if a practice or rule "offends some principle of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental".50
(U) Standing by itself, the phrase "due process" would seem to refer solely and simply to procedure, to process in
court, and therefore to be so limited that "due process of law" would be what the legislative branch enacted it to be.
But that is not the interpretat8ion which has been placed on the term. "It is manifest that it was not left to the
legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as
on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any
process ‘due process of law’
----------
(U) Because the Due Process considerations under the 5th and 14th amendments are the same for our purposes, this
analysis considers them together.
(U) Solesbee v. Batkcom, 339 U.S. 9, 16 (1950) (Justice Frankfurter dissenting).
(U) Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
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Reserve component and retired regular officers can, under certain circumstances, also be subject to the UOMJ, as can
civilians accompanying the Armed Forces in time of war under certain circumstances.
1.
(U) Offenses
(U) a number of UCMJ provisions potentially apply to service members involved in the interrogation and supervision of
the interrogation of detainees. Most significant are the following:
a.
Cruelty, Oppression or Maltreatment, Art 93
(U) The elements of the offense are that the alleged victim was subject to the orders of the accused and that the
accused was cruel toward, oppressed, or maltreated the victim. The cruelty, etc. need not be physical. Subject to the
orders of, includes persons, subject to the UCMJ or not, who are by some reason of some duty are required to obey the
lawful orders of the accused, even if not in the direct chain of command of the accused. "Cruel", "oppressed", and
"maltreated" refer to unwarranted, harmful, abusive, rough or other unjustifiable treatment that, under all the
circumstances, results in physical or mental pain or suffering and is unwarranted, unjustified and unnecessary for any
lawful purpose. It is measured by an objective standard. MCM IV-25; MJB, Section 3-17-1.
b.
Reckless Endangerment, Art 134
(U) The elements of the offense are that the accused engaged in wrongful conduct that was reckless or wanton and that
the conduct was likely to produce death or grievous bodily harm. "[L]ikely to produce" means the natural or probable
consequences of particular conduct. "[G}rievous bodily harm" includes injuries comparable to fractured or dislocated
bones, serious damage to internal organs. MCM IV-119; MJB, Section 3-100A-1.
c.
Assault, Art 128
(U) This article encompasses the following offenses:
(U) Simple assault – The elements are that the accused attempted or offered to do bodily harm to an individual and that
such attempt or offer was done with unlawful force and violence. An act of force or violence is unlawful if done without
legal justification or excuse and without the consent of the victim. The use of threatening words accompanied by a
menacing act or gesture may constitute an assault. MCM IV-81; MJB, Section 3-54-1.
----------
(U) Article 2 UCMJ; Rules for Courts-Martial, Rule 202, and Discussion.
(U) The following are extracted from the Department of the army Pamphlet 27-9, Military Judges’ Benchbook (MJB), which
summarizes the requirements of the Manual for Courts-Martial (MCM) and case law applicable to trials by courts martial.
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(U) Assault consummated by battery – An assault resulting in actual infliction of bodily harm is a batter. Bodily harm
means any physical injury to or offensive touching, however slight. MCM IV-83; MJB, Section 3-54-1A.
(U) Aggravated assault (use of a dangerous weapon, means or force) – In addition to the elements of an assault, this
offense requires that the means or force attempted or offered was used in a manner likely to produce death or grievous
bodily harm. Any object, regardless of its normal use, could become a means likely to inflict grievous bodily harm
depending on the manner in which it is actually used. MCM IV-84; MJB, Section 3-54-8.
(U) There are multiple instances in which authority and context permit touching - by police officers, prison guards,
training NCOs, etc. - that would not be lawful under other circumstances. A central issue would be how clearly the
limits of authority were defined and whether under the circumstances the individual exceeded the scope of that
authority.
d.
Involuntary Manslaughter, Art 119
(U) The elements of this offense are that acts or omissions constitution culpable negligence resulted in an unlawful
killing. Culpable negligence contemplates a level of heedlessness in circumstances in which, when viewed in the light of
human experience, might foreseeably result in death. MCM IV-64. Failure to assiduously follow protocols providing for
the health and safety of detainees during interrogations of detainees, could amount to such culpable negligence, MJB,
Section 3-44-2.
e.
Unpremeditated Murder, Art 118
(U) The relevant elements of the offense are that the person is dead, his death resulted from the act or failure to act
of the accused, that the killing was unlawful, without legal justification, and at that time the accused had the intent
to inflict great bodily harm upon the person. MCM IV-118, MTB, Section 3-43-2.
f.
Disobedience of Orders, Art 92
(U) This offense is committed when the accused, having a duty to do so, fails to obey lawful orders or regulations, MCM
IV-23; MJB, Section 3-16. the duty to obey may extend to treaties and statuettes as well as regulations. The Convention
against Torture and the general case law regarding cruel and unusual punishment may be relevant here as it is for
Article 93, See generally, Wilson v. Setter, 501 U.S. 294 (1991).
g.
Dereliction of Duty, Art 92
(U) A dereliction occurs when an individual knew or should have known of certain prescribed duties and either wilfully
or through neglect was derelict in the perfro4rmance of those duties. MCM IV-24; MJB, Section 3-16-4. Customs of the
service
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As well as statues and treaties that have become the law of the land may create duties for purposes of this article.
h.
Maiming, Art 124
(U) The elements of this offense are that the accused intentionally inflicted an injury on a person, and whether
intended or not, that the injury seriously disfigured the person’s body, destroyed or disabled an organ or member, or
seriously diminished the person’s physical vigor. MCM IV-77; MJB, Section 3-50-1.
2.
Affirmative Defenses under the UCMJ (R.C.M. 916)
(U) In order for any use of force to be lawful, it must either be justified under the circumstances or an accepted
affirmative defense is present to excuse the otherwise unlawful conduct. No case law was found that defines at what
point force or violence becomes either lawful or unlawful during war. Each case is by its nature, dependent upon the
factual circumstances surrounding the incident.
(U) Applying accepted rules for law of armed conflict, the use of force is only authorized when there is a mili5tary
purpose and the force used is no greater than necessary to achieve the objective. The existence of war does not in and
of itself justify all forms of assault. For instance , in United States v. Calley, 22 U.S.C.M.A 534k, 48 C.M.R:19
(1973), the court recognized that "while it is lawful to kill an enemy in the heat and exercise of war, to kill such an
enemy after he has laid down his arms…is murder." Further, the fact that the law of war has been violated pursuant to an
order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war
crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not
reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to
constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be
considered in mitigation of punishment. The thrust of these holdings is that even in war, limits to the use and extent
of force apply.
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a.
Self-Defense
(U) for the right of self-defense to exist, the accused must have had a reasonable apprehension that death or grievous
bodily harm was about to be inflicted on himself. The test is whether, under the same facts and circumstances, an
ordinary prudent adult person faced with the same situation would have believed that there were grounds to fear
immediate death or serious bodily harm (an objective test) and the person must have actually believed that the amount of
force used was required to protect against death or serious bodily harm (a subjective test). Grievous bodily harm means
ser8ious bodily injury. It does not mean minor injuries such as a black eye or a bloody nose, but does mean fractured or
dislocated bones, deep cuts, torn members of the body, serious damage to internal organs or other serious bodi8ly
injuries. MJB, Section 5-2. (See also the discussion of "Self-Defense" under the discussion of Federal law, supra.)
b.
Defense of another
(U) For this defense, the accused must have had a reasonable belief that harm was about to be inflicted and that the
accused actually believed that force was necessary to protect that person. The accused must actually believe that the
amount of force used was necessary to protect against the degree of harm threatened. MJB, Section 5-3-1.
c.
Accident
(U) The defense arises when an accused is doing a lawful act I a lawful manner, free of any negligence, and
unforeseeable or unintentional death or bodily harm occurs. MJB, Section 5-4.
d.
Mistake of Fact
(U) If ignorance or mistake of a fact5 concerns an element of an offense involving specific intent, the ignorance or
mistake need only exist in the mind of the accused, i.e., if the circumstances of an event were as the accused believed,
there would be no offense. For crimes not involving specific intent, the ignorance or mistake must be both honest
(actual) and reasonable. The majority of the crimes discussed above do not require specific intent. For instance, in the
case of violations of general orders, knowledge is presumed. Most of the "mistakes" would likely be mistakes of law in
that the accused would not believe that the conduct was unlawful. While mistakes of law are generally not a defense,
unawareness of a law may be a defense to show the absence of a criminal state of mind when actual knowledge is not
necessary to establish the offense. MJB, Section 5-11.
e.
Coercion or duress
(U) It is defense to any offense except killing an innocent person that the accused’s participation in the offense was
caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would
immediately
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Suffer serious bodily injury if the accused did not commit the act. This apprehension must
reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid
committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall
not apply. R.C.M. 916(h), MJB, Section 5-5.
(U) To establish a duress defense it must be shown that an accused’s participation in the offense was caused by a
reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately
suffer serious bodily harm if the accused did not commit the act. The apprehension must reasonably continue throughout
the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting
the accused or another innocent person to the harm threatened, this defense shall not apply. The Court of Appeals stated
in United States v. Fleming, 23 C.M.R. 7 (1957), that the defense of duress is available to an accused only if the
commission of the crime charged resulted from reasonable fear of imminent death or grievous bodily harm to himself of
his family. The risk of injury must continue throughout the criminal venture.
f.
Obedience to Orders (MJB, Sections 5-8-1 and 5-8-2)
(U) The viability of obedience to orders as a defense turns on the directives and policy of the service member’s Chain
of Command. For example, when the interrogator at the direction of the command employs the use of physical force as an
interrogation method, he/she would certainly raise the defense of obedience to orders. The question then becomes one of
degree. While this may be a successful defense to simple assaults or batteries, it would unlikely be as successful to
more serious charges such as maiming, manslaughter, and maiming. Within the middle of the spectrum lay those offenses
for which the effectiveness of this defense becomes less clear. Those offenses would include conduct unbecoming an
officer, reckless endangerment, cruelty, and negligent homicide.
(U) Obedience to orders provides a viable defense only to the extent that the accused acted under orders, and did not
know (nor would a person of ordinary sense have known? The orders were unlawful. This the viability of this defense is
key to the accused’s (or a reasonable person’s) knowledge of the lawfulness of the order. Common sense suggests that the
more aggressive and physical the technique authorized (ordered) by the command, the more unlikely the reasonable belief
that the order to employ such methods is lawful.
(U) In order for any use of force to be lawful, it must either (i) be justified under the circumstances or (ii) an
accepted affirmative defense is present to excuse the otherwise unlawful conduct. No case law was found that defines at
what point force or violence becomes either lawful or unlawful during war. Each case is by its nature, dependent upon
the factual circumstances surrounding the incident.
(U) applying accepted rules for the law of armed conflict, the use of force is only authorized when there is a military
purpose and the force used is no greater than
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necessary to achieve the objective. The existence of war does not in and of itself justify all forms of assault. For
instance, in US v. Calley, the court recognized that "while it is lawful to kill an enemy in the heat and exercise of
war, to kill such an enemy after he has laid down his arms…is murder." Further, the fact that the law of war has been
violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question
of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did
not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the
order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting
pursuant to orders may be considered in mitigation of punishment." The thrust of these holdings is that even in war,
limits to the use and extent of force apply.
g.
Necessity
(U) another common law affirmative defense is one of necessity. This defense is recognized by a number of states and is
applicable when: 1) the harm must be committed under the pressure of physical or natural force, rather than human force;
2) the harm so8ught to be avoi8ded is greater than (or at least equal to) that harm sought to be prevented by the law
defining the offense charged; 3) the actor reasonably believes at the moment that his act is necessary and is designed
to avoid the greater harm; 4) the actor must be without fault in bringing about the situation; and 5) the harm
threatened must be imminent, leaving no alternative by which to avoid the greater harm.
(U) However, military courts have treated the necessity defense with disfavor and in fact, some have refused to accept
necessity as a permissible defense (the MCM does not list necessity as an affirmative defense under RCM 916). "The
problem with the necessity defense is that it involves a weighing of evil inflicted against evil avoided and is,
thereby, difficult to legislate." The courts also have been reluctant to embrace the defense due to a "fear that private
moral codes will be substituted for legislative determination, resulting in a necessity exception that swallow’s the
rule of law." United States v. Rankins, 34 MJ 326 (CMA 1992).
(U) The effect of these cases is that the MCM recognizes that an accused may commit an illegal act in order to avoid the
serious injury or death of the accused or an innocent person. However, military law limits this defense only when there
is an imminent and continuing harm that requires immediate action to prevent. One the immediacy is gone, the defense
will no longer apply. Ostensibly, the use of force to acquire information from an unlawful combatant, absent immediate
and compelling circumstances, will not meet the elements established by the MCM and case law. (But see the necessity
defense in the discussion of Federal law, supra.)
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3.
Legal doctrine could render specific conduct, otherwise criminal, not unlawful
See discussion of Commander-in-Chief authority, supra.
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IV.
Considerations Affecting Policy
A.
Historical Role of U.S. Armed Forces
1.
Background
(U) The basic principles of interrogation doctrine, procedures, and techniques applicable to Army intelligence
interrogations from June 1945 through May 1987 were continued in Field Manual (FM) 30-15, Examination of Personnel and
Documents. FM 30-15 set forth Army doctrine pertaining to the basic principles of intelligence interrogation and
established the procedures and techniques applicable to Army intelligence interrogations of non-U.S. personnel. The
other services report that they too apply the provisions of this Field Manual.
2.
Interrogation Historical Overview
(U) FM 30-15 stated that the principles and techniques of interrogation discussed within the manual are to be used
within the constraints established by humanitarian international law and the Uniform Code of Military Justice ("UCMJ").
The fundamental principle underlying Army doctrine concerning intelligence interrogations between 1045 and the issuance
of current doctrine in 1987 (FM 34-52), is that the commander may utilize all available resources and lawful means in
the accomplishment of his mission and for the protection and security of his unit. However, a strong caveat to this
principle noted, "treaty commitments and policy of the United States, international agreements, international law, and
the UCMJ require the conduct of military to conform with the law of war." FM30-15 also recognized that Army intelligence
interrogations must conform to the "specific prohibitions, limitations, and restrictions established by the Geneva
Conventions of 12 August 1949 for the handling and treatment of personnel captured or detained by military forces"
(citing FM 27-10, The Law of Land Warfare).
(U) FM 30-15 also stated that "violations of the customary and treaty law applicable to the conduct of war normally
constitutes a concurrent violation of the Uniform Code of Military Justice and will be prosecuted under that code." The
manual advised Army personnel that it was "the direct responsibility of the Commander to insure that the law of war is
respected in the conduct of warfare by forces in his command." This, the intelligence interrogation techniques outlined
in FM 30-15 were based upon conduct sanctioned under international law and domestic U.S. law and as constrained within
the UCMJ.
(U) Historically, the intelligence staff officer (G2/S2) was the primary Army staff officer responsible for all
intelligence functions within the command structure. This responsibility included interrogation of enemy prisoners of
war (EPW), civilian internees, and other captured or detained persons. In conducting interrogations, the intelligence
staff officer was responsible for insuring that the activities were executed in accordance with international and
domestic U.S. law, United States Government policy, and the applicable regulations and field manuals regarding the
treatment and handling of EPWs,
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civilian internees and other captured or detained persons. In the maintenance of interrogation collection, the
intelligence staff officer was required to provide guidance and training to interrogators, assign collection
requirements, promulgate regulations, directives, and field manuals regarding intelligence interrogation, and insure
that interrogators were trained in international and domestic U.S. law and the applicable Army publications.
(U) FM 30-15 stated that intelligence interrogations are an art involving the questioning and examination of a source in
order to obtain the maximum amount of usable information. Interrogations are of may types, such as the interview, a
debriefing and an encitation. However, the FM made clear that the principles of objective, initiative, accuracy,
prohibitions against the use of force, and security apply to all types of interrogations. The manual indicated that the
goal is to collect usable and reliable information, in a lawful manner, promptly, while meeting the intelligence
requirements of the command.
(U) FM 30-15 emphasized a prohibition on the use of force during interrogations. This prohibition included the actual
use of force, mental torture, threats, and exposure to inhumane treatment of any kind. Interrogation doctrine,
procedures, and techniques concerning the use of force are based upon prohibitions in international and domestic U.S.
law, FM 30-15 stated that experience revealed that the use of force was unnecessary to gain cooperation and was a poor
interrogation technique, given that its use produced unreliable information, damaged future interrogations, and induced
those being interrogated to offer information viewed as expected in order to prevent the use of force. However, FM 30-15
stated that the prohibition on the use of force, mental or physical must not be confused with the use of psychological
tools and deception techniques designed to induce a source into providing intelligence information.
(U) The Center for Military History has been requested to conduct a search of government databases, to include the
Investigative Records Repository, for documentation concerning the historical participation of the U.S. Armed Forces in
interrogations and any archival materials related to interrogation techniques. As of the writing of this analysis no
reply has been received.
3.
Current Doctrine
(U) In May 1987, the basic principles of current doctrine, procedures, and techniques applicable to Army intelligence
interrogations were promulgated in Field Manual (FM) 34-52, Intelligence Interrogation. FM 34-52 provides general
guidelines for commanders, staff officers, and other personnel in the use of interrogation elements in Army intelligence
units. It also outlines procedures for handling sources of interrogations, the explitation and processing of documents,
and the reporting of intelligence gained through interrogation. Finally, FM 34-52 covers directing and supervising
interrogation operations, conflict scenarios, and their impact on interrogation operations, to include peacetime
interrogation operations.
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(U) Army interrogation doctrine today, and since 1945, places particular emphasis on the humane handling of captured
personnel. Interrogators receive specific instruction by Army Judge Advocates on the requirements of international and
domestic U.S. law, to include constraints established by the Uniform Code of Military Justice (e.g. assault, cruelty and
maltreatment, and communicating a threat).
(U)FM 34-52 adopted the principles and framework for conducting intelligence interrogations as stated in FM 30-15. FM
34-52 maintained the establ8ished Army doctrine that intelligence interrogations involve the art of questioning and
examining a source in order to obtain the maximum amount of useable information,. FM 34-52 also reiterated Army doctrine
that the principles of objective, initiative, accuracy, prohibition on the use of force, and security apply to all types
of interrogations. The goal of intelligence interrogation under current doctrine is the same, the collection of usable
and reliable information promptly and in a lawful manner, while meeting the intelligence requirements of the command.
(U) FM 34-52 and the curriculum at U.S. Army Intelligence Center, Fort Hauchuca, continue to emphasize a prohibition on
the use of force. As stated in its predecessor, FM 34-52 defines the use of force to include actual force, mental
torture, threats, and exposure to inhumane treatment of any kind. The underlying basis for this prohibition is the
proscriptions contained in international and domestic U.S. law. Current Army intelligence interrogation doctrine
continues to view the use of force as unnecessary to gain the cooperation of captured personnel. Army interrogation
experts view the use of force as an inferior technique that yields information of questionable quality. The primary
concerns, in addition to the effect on information quality, are the adverse effect on future interrogations and the
behavioural change on those being interrogated (offering particular information to avoid the use of force). However, the
Army’s doctrinal prohibition on the use of force does not proscribe legitimate psychological tools and deception
techniques.
(U) FM 34-52 outlines procedures and approach techniques for conducting Army interrogations. While the approach
techniques are varied, there are three common purposes: establish and maintain control over the source and the
interrogation, establish and maintain rapport between the interrogator and the source, and manipulate the source’s
emotions and weaknesses to gain willing cooperation. Approved techniques include: Direct Incentive; Emotional (Love & Hate); Increased Fear Up (Harsh & Mild); Decreased Fear Down; Pride and Ego (UP & Down); Futility Technique, We Know All; Establish Your Identity; Repetition, File and Dossier, and Mutt and Jeff
(Friend and Foe). These techniques are discussed at greater length in Section V, infra.
B.
Presidential and Secretary of Defense Directives
(U) The President’s Military Order that addresses the detention, treatment, and trial of certain non-citizens in
the war against terrorism, provides inter alta, that any
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(U) Military Order - Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, President of
the United States, November 12, 2001
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Go to Original
Administration Lawyers Ascribed Broad Power to Bush on Torture
By David G. Savage and Richard B. Schmitt
Los Angeles Times
Thursday 10 June 2004
In a memo dated weeks after the invasion of Iraq, administration counsel said the president's authority superceded
Congress'.
Washington - On the eve of the war in Iraq, Bush administration lawyers spelled out a strikingly broad view of the
president's power that freed the commander in chief and U.S. military from the federal law and international treaties
that barred the use of torture.
In past wars, presidents have claimed special powers. During the Civil War, President Lincoln suspended habeas corpus
and allowed accused traitors to be tried before military courts. Shortly after the Japanese attack on Pearl Harbor,
President Franklin D. Roosevelt issued an order authorizing the military to intern thousands of Japanese Americans.
In those instances, however, the president acted with the approval of Congress. Rarely, if ever, have the president's
advisors claimed an authority to ignore the law as written by Congress.
The legal memo, written last year for the Defense Department and disclosed this week, did not speak for President Bush,
but it claimed an extraordinary power for him. It said that as the commander in chief, he had a "constitutionally
superior position" to Congress and an "inherent authority" to prosecute the war, even if it meant defying the will of
Congress.
Congress adopted an anti-torture law in 1994 that barred Americans abroad acting under U.S. authority from inflicting
"severe physical or mental pain."
But the 56-page memo on "Detainee Interrogation in the Global War on Terrorism" maintains that the president and his
military commander cannot be restrained in this way.
"Congress lacks authority - to set the terms and conditions under which the president may exercise his authority as
commander in chief to control the conduct of operations during a war," the memo asserts. "Congress may no more regulate
the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop
movements on the battlefield. Accordingly, we would construe [the law] to avoid this difficulty and conclude that it
does not apply to the president's detention and interrogation of enemy combatants."
The memo was dated March 6, 2003, two weeks before the start of the war in Iraq. In earlier memos, administration
lawyers said the president could designate even American citizens arrested within the United States as "enemy
combatants," and thus theoretically subject them to torture.
But according to several mainstream legal scholars, this turns the Constitution on its head. The 18th century document
says Congress makes the laws, and the president has the duty to carry them out.
"He shall take care that the laws be faithfully executed," the Constitution says of the president.
Moreover, the Constitution grants Congress specific powers to set the rules in war and peace, including for captives.
"Congress shall have the power - to declare war and make rules concerning captures on land and water - to define
offenses against the law of nations [and] to make rules for the government and regulation of the land and naval forces."
A broad range of legal experts, including specialists in military law, say they were taken aback by this bald assertion
of presidential supremacy.
"It is an extraordinary claim. It is as broad an assertion of presidential authority as I have ever seen," said Michael
Glennon, a war law expert at Tufts University. "This is a claim of unlimited executive power. There is no reason to read
the commander-in-chief power as trumping the clear power of Congress."
University of Texas law professor Douglas Laycock added, "It can't be right. It is just wrong to say the president can
do whatever he wants, even if it is against the law."
Veteran military lawyers also said they were surprised and dismayed by the memo.
"It's an argument I have never seen made before - that the commander in chief's war-fighting powers trump the
restrictions in the Geneva Convention," said Grant Lattin, a former judge advocate for the Marines who practices
military law in Virginia. "I am having a difficult time even following the logic, that somehow because this is a new
type of war that these military commanders' authority has somehow grown larger than the restrictions that we have
accepted in the Geneva Convention."
Retired Rear Adm. John Hutson, the former judge advocate general for the Navy, said the memo read as though the lawyers
were trying to bend the law to benefit their client, rather than stating the law fairly and accurately.
"That is not the job of people advising the president or the attorney general or the secretary of Defense. They have to
be right legally, and I think they have an obligation to be right morally. I think they failed on both counts," said
Hutson, now dean of the Franklin Pierce Law Center in Concord, N.H.
"The argument proves too much," he added. "If the president's inherent authority as commander in chief trumps domestic
and international law, where is the limit? If every sovereign can ignore the law, then no one is bound by it."
It is not clear who wrote the memo or what effect it had. This week, administration officials, including Atty. Gen John
Ashcroft, insisted that U.S. officials did not condone or authorize the use of torture. They characterized the memo as a
view presented by lawyers in the administration that was not put into practice.
In 2002, the Justice Department's Office of Legal Counsel took the lead in arguing for a broad view of presidential
authority in the war on terrorism. The same office contributed to the Pentagon's "working group" memo.
The office was led by two conservative law professors, Jay S. Bybee and John C. Yoo. They wrote the key memos declaring
the Geneva Convention did not apply to accused terrorists, the Taliban or other detainees who were held at the U.S.
naval base at Guantanamo Bay, Cuba.
They also said the president had the power to arrest and hold in military custody American citizens who were deemed to
be "enemy combatants." The administration cited this authority as the basis for holding Jose Padilla, an accused
terrorist who was arrested at Chicago's O'Hare Airport.
The Supreme Court is considering Padilla's case and is expected to rule on it before the end of June.
Bybee and Yoo have left the government. Bush nominated Bybee as a judge on the U.S. 9th Circuit Court of Appeals in San
Francisco, and March 14, 2003, he won confirmation by the Senate. Yoo, a former clerk to Supreme Court Justice Clarence
Thomas, has returned to his position as a law professor at UC Berkeley.
The Pentagon's legal working group was chaired by the Defense Department's general counsel, William J. Haynes II. He too
has been nominated to be an appellate judge, in the U.S. 4th Circuit in Richmond, Va.
In March, the Republican-controlled Senate Judiciary Committee narrowly approved his nomination, but he has not been
brought up for a final vote in the Senate.
A year ago, Haynes told Sen. Patrick J. Leahy (D-Vt.) that he and the Pentagon opposed any use of torture.
"We can assure you that it is the policy of the United States to comply with all of its legal obligation in its
treatment of detainees," he said in a letter citing the Geneva Convention and the anti-torture law. "The United States
does not permit, tolerate or condone any such torture by its employees under any circumstances."
The letter, dated June 25, 2003, came three months after the secret memo argued that the president could employ the use
of torture if he chose to do so.
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