Working Group Report on Detainee Interrogations

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Working Group Report on Detainee Interrogations  (2003) 

Working Group Report on Detainee Interrogations in the Global War on Terrorism;
Assessment of Legal, Historical, Policy, and Operational Considerations

Final Report Dated April 4, 2003

Classified by: Secretary Rumsfeld
Reason: 1.5 (C)
Declassify on: 10 years

Declassify Under the Authority of Executive Order 12958
By Executive Secretary, Office of the Secretary of Defense
By William P. Marriot, CAPT, USN
June 21, 2004


[--------------------]

UNCLASSIFIED

SECRET/NOFORN

Contents

I. Introduction[edit]

(U) On January 15, 2003, the Secretary of Defense (SECDEF), directed the General Counel of the Department of Defense (DOD GC) to establish a working group within the Department of Defense (DOD) to assess the legal, policy, and operational issues relating to the interrogations of detainees held by the United States Armed Forces in the war on terrorism. Attachment 1.

(U) On January 16, 2003, the DOD GC asked the General Counsel of the Department of the Air Force to convene this working group, comprised of representatives of the following entities: the Office of the Undersecretary of Defense (Policy), the Defense Intelligence Agency, the General Counsels of the Air Force, Army, and Navy and Counsel to the Commandant of the Marine Corps, the Judge Advocates General of the Air Force, Army, Navy, and Marines, and the Joint Staff Legal Counsel and J5. Attachment 2. The following assessment is the result of the collaborative efforts of those organizations, after consideration of diverse views, and was informed by a Department of Justice opinion.

(U) In preparing this assessment, it was understood that military members, civilian employees of the United States, and contractor employees currently participate in interrogations of detainees. Further, those who participate in the decision processes are comprised of military personnel and civilians.

(U) Our review is limited to the legal and policy considerations applicable to interrogation techniques applied to unlawful combatants in the Global War on Terrorism interrogated outside the sovereign territory of the United States by DOD personnel in DOD interrogation facilites. Interrogations can be broadly divided into two categories, strategic and tactical. This document addresses only strategic interrogations that are those conducted: (i) at a fixed location created for that purpose; (ii) by a task force or higher level component and (iii) other than in direct and immediate support of on-goin military operations. All tactical interrogations, including battlefield interrogations, remain governed by existing doctrine and procedures and are not directly affected by this review.

(U) In considering interrogation techniques for possible application to unlawful combatants in the "strategic" category, it became apparent that those techniques could be divided into three types: (i) routine (those that have been ordinarily used by interrogators for routine interrogations), (ii) techniques comparable to the first type but not formally recognized, and (ii) more aggresive counter-resistance techniques than would be used in routine interrogations. The third type would only be appropriate when presented with a resistant detainee who there is good reason to believe possesses critical intelligence.

Many of the techniques of the second and third types have been requested for approval by USSOUTHCOM and USCENTCOM. The working group's conclusions regarding these three types of techniques, including recommendations for appropriate safeguards, are presented at the end of this report.

(U) This assessment comes in the context of a major threat to the security of the United States by terrorist forces who have demonstrated a ruthless disregard for even minimal standards of civilized behavior, with a focused intent to inflict maximum casualties on the United States and its people, including its civilian population. In this context, intelligence regarding their capabilities and intentions is of vital interest to the United States and its friend and allies. Effective interrogations of those unlawful combatants who are under the control of the United States have proven to be and will remain a critical source of this information necessary to national security.

(U) Pursuant to the Confidential Presidential Determination, dated February 7, 2002 (Humane Treatment of al Qaida and Taliban Detainees), the President determined tthat members of al-Qaida and the Taliban are unlawful combatants and therefore are not entitled to the protections of the Geneva Conventions as prisoners of war or otherwise. However, as a matter of policy, the President has directed U.S. Armed Forces to treat al Qaida and Taliban detainees "humanely" and "to the extent appropriate and consistent with military necessity, in a manner consistent with the principles" of the Geneva Conventions. Due to the unique nature of the war on terrorism in which the enemy covertly attacks innocent populations without warning, and further due to the critical nature of the information believed to be known by certain of the al-Qaida and Taliban detainees regarding future terrorist attacs, it may be appropriate fo the appropriate approval authority to authorize as a military necessity the interrogation of such unlawful combatants in a manner beyond that which may be applied to a prisoner of war who is subject to the protections of the Geneva Conventions.

(U) In considering this issue, it became apparent that any recommendations and decisions must take into account the international and domestic law, past practices and pronouncements of the United States, DOD policy considerations, practical interrogation considerations, the views of other nations, and the potential impacts on the United States, its Armed Forces generally, individual interrogators, and those responsible for authorizing and directing specific interrogation techniques.

(U) We were asked specifically to recommend techniques that comply with all applicable law and are believed consistent with policy considerations not only of the United States but which may be unique to the DOD. Accordingly, we undertook that analysis and conducted a technique-specific review that has produced a summary chart (Attachment 3) for use in identifying the recommended techniques.

II. International Law[edit]

(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. These views are addressed in the "Considerations Affecting Policy" section below.

A. The Geneva Conventions[edit]

(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. [1] 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. [2] 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.


[1] The President determined that "none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva." Confidential Presidential Determination, subject: Humane Treatment of al Qaida and Taliban Detainees, dated Feb. 7, 2002.
[2] The President determined that "the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva." ld.


B. The 1994 Convention Against Torture[edit]

(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 suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) 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; (3) the threat of imminent death; (4) 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. [4]

(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. [5] The United States did not have an Understanding or Reservation relating to this provision (however the U.S. issued a Declaration stating that Article 2 is not self-executing).

(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.

(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.


[3] (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.”
[4] (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.
[5] (U) But see discussion to the contrary at the Domestic Law section on the necessity defense.


C. Customary International Law[edit]

(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. [6] 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”. [7]


[6] (U) Memorandum dated January 22, 2002, Re: Application of Treaties to al-Qaida and Taliban detainees at 32.
[7] (U) Memorandum dated January 22, 2002, Re: Application of Treaties to al-Qaida and Taliban detainees at 35.


III. Domestic Law[edit]

A. Federal Criminal Law[edit]

1. Torture Statute[edit]

(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. [8] 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 [9] that extends the criminal jurisdiction of the United States for designated crimes to defined areas. [10] The effect is to grant federal court criminal jurisdiction for the specifically identified crimes.

(U) The USA Patriot Act (2001) amended the definition of the SMTJ to add 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—
(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) By its terms, the plain language of new subsection 9 includes Guantanamo Bay Naval Station (GTMO) within the definition of the SMTJ, and accordingly makes GTMO within the United States for purposes of § 2340. As such, the Torture Statute does not apply to the conduct of U.S. personnel at GTMO. Prior to passage of the Patriot Act in 2001, GTMO was still considered withing the SMTJ as amnifested by (i) the prosecution of civilian dependents and employees living in GTMO in Federal District Courts based on SMTJ jurisdiction, and (ii) a Department of Justice opinion [11] to that effect.

(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, depending on the facts and circumstances of each case involved. 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.”)


[8] (U) Section 2340A provides, “Whoever outside the Unites States commits or attempts to commit torture shall be fined or imprisoned…” (emphasis added).
[9] (U) 18 USC § 7, “Special maritime and territorial jurisdiction of the United States” includes any lands under the exclusive or concurrent jurisdiction of the United States.
[10] (U) Several paragraphs of 18 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”.
[11] (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”.


a. “Specifically Intended”[edit]

(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.)

(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 a defendant acts in good faith, he acts with an honest belief that he has not engaged in the proscribed conduct. See Cheek v. United States, 498 U.S. 192, 202 (1991); Unied States v. Mancuso, 42 F.3d 836, 837 (4th Cir. 1994). For example, in the context of mail fraud, if an individual honestly believes that the material transmitted is truthful, he has not acted with the required intent to deceive or mislead. See e.g. United States v. Sayakhom, 186 F.3d 928 939-40 (9th Cir. 1999). A good faith belief need not be a reasonable one. See Cheek, 498 U.S. at 202.

(U) Although a defendant theoretically could hold an unreasonable belief that his acts would not constitute the actions prohibited by the statute, even though they would as a certainty produce the prohibited effects, as a matter of practice in the federal criminal justice system, it is highly unlikely that a jury would acquit in such a situation. Where a defendant holds an unreasonable belief, he will confront the problem of providing to the jury that he actually held that belief. As the Supreme Court noted in Cheek, “the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury…will find that the government has carried its burden of providing knowledge”. Id at 203-04. As explained above, a jury will be permitted to infer that the defendant held the requisite specific intent. As a matter of proof, therefore, a good faith defense will prove more compelling when a resonable basis exists for the defendant’s belief.

b. “Severe Pain or Suffering”[edit]

(U) The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause “severe physical or mental pain or suffering”. In examining the meaninf of a statute, its text must be the starting point. See INS v. Phinpathya, 464 U.S. 183, 189 (1984) (“This Court has noted on numerous occasions that in all cases involving statutory construction, our starting point must be the language employed by Congress…and we assume that the legislative purpose is expressed by the ordinary meaning of the words used.”) (internal quotations and citations omitted). Section 2340 makes plain that the infliction of pain or suffering per sem whether it is physical or mental, is insufficient to amount to torture. Instead, the text provides that pain or suffering must be “severe.” The staute does not, however, define the term “severe”. “In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natrual meaning.” FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines “severe” as “[u]nsparing in exaction, punishment, or censure” or “[i]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture”. Webster’s New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) (“extremely violent or grievous: severe pain”) (emphasis in original); IX The Oxford English Diction"4TY 572 (1978) (“Of pain, suffering, loss or the like: Grievous, extreme” and “of circumstances…hard to sustain or endure”). Thus, the adjective “severe” conveys that the pain or suffering must be of such a high level of intensity that the pain is dificult for the subject to endure.

c. “Severe Mental Pain or Suffering”[edit]

(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”[edit]

(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 who has experienced torture). [12] 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 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).


[12] 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.


ii. Harm Caused By Or Resulting From Predicate Acts[edit]

(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, 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 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. [13] 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 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 id 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)(C). 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.


[13] (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).


2. Other Federal Crimes that Could Relate to Interrogation Techniques[edit]

(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.


[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.


a. Assaults within maritime and territorial jurisdiction, 18 U.S.C. § 1139[edit]

(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. 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 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[edit]

(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[edit]

(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[edit]

(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[edit]

(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 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.”).

f. Conspiracy, 18 U.S.C. § 2 and 18 U.S.C. § 371 [15][edit]

(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 Whether or not the substantive crime ensues”, Id at* (quoting Salinas v. United States, 522 U.S. 52, 65 (1977).


[15] (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.
[16] (U) United States v. Rabbinowich, 238 US 78, 59, 35 S.Ct 682, L. Ed 1211 (1915).
[17] (U) United States v. Cangiano, 491 F.2d 906 (2nd Cir, 1974), next denied 419 U.S. 904 (1974).


3. Legal doctrines under the Federal Criminal Law that could render specific conduct, otherwise criminal, not unlawful[edit]

(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[edit]

(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 reluctant to intrude upon the authority of the Executive in military and national security affairs.”); 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 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 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) 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. [20]


[18] (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).
[19] (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).
[20] (U) Although application of the Commander-in-Chief authority does not require a specific written directive, as an evidentiary matter a written Presidential directive or other document would serve to memorialize the authority.


b. Necessity[edit]

(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 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.

(U) Although not every interrogation that could violate the provisions of Section 2340A or other potentially applicable statutes would trigger a necessity defense, it appears that under the current circumstances there may be support for such defense. On September 11, 2001, al Qaida launched a surprise covert attack on civilian targets in the United States that led to the deaths of thousands and financial losses in the billions of dollars. According to public and governmental reports, al Qaida has other sleeper cells within the United States that may be planning similar attacks. Indeed, al Qaida's plans apparently include efforts to develop and deploy chemical, biological, and nuclear weapons of mass descruction. Under these circumstances, a detainee may possess information that could enable the United States to prevent attacks that potentially could equal or surpass the September 11 attacks in their magnitude. Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives.

(U) Under this rationale, two factors will help indicate that when the necessity defense could appropriately be invoked. First, the more certain that government officials are that a particular individual has information needed to prevent an attack, the more necessary interrogation will be. Second, the more likely it appears that a terrorist attack is likely to occur, and the greater the amount of damage expected from such an attack, the more that an interrogation to get information would become necessary. Of course, the strength of the necessity defense depends on the circumstances that prevail, and the knowledge of the government actors involved, when the interrogation is conducted. While every interrogation that violate Section 2340A or other potentially applicable statutes does not trigger a necessity defense, we can say that circumstances could support such a defense.

(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. [21]


[21] 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 silent as to the 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 invoked 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.


c. Self-Defense[edit]

(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. [22] According to LaFave and Scott, the elements of the defense of others are the same as those that apply to individual self-defense.

(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 be 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 requirement of necessity. Robinson at 78. LaFave and Scott , for example, believe that the imminence requirement makes sense as part of a necessity defense because if an attack is not immediately upon the defender, the defender may have other options available to avoid the attack that do not involve the use of force. LaFave and Scott at 656. If, however, the fact that the attack becomes certain and no other options remain 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.

As the Model Penal Code § 3.04(2)(b) states, "[t]he use of deadly force is not justifiable unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat."

(U) Under the current circumstances, a defendant accused of violating the criminal prohibitions described above could have, in certain circumstances, grounds to properly claim the defense of another. The threat of an impending terrorist attack threatens the lives of hundreds if not thousands of American citizens. Whether such a defense will be upheld depends on the specific context within which the interrogation decision is made. If an attack appears increasingly likely, but our intelligence services and Armed Forces cannot prevent it without information from the interrogation of a specific individual, then the more likely it will appear that the conduct in question will be seen as necessary. If intelligence and other information support the conclusion that attack is increasingly certain, then the necessity for the interrogation will be reasonable. The increasing certainty of an attack will also satisfy the imminence requirement. Finally, the fact that previous al Qaida attacks have ahd as their aim the deaths of American citizens, and that evidence of other plots have had a similar goal in mind, would justify proportionality of interrogation methods designed to elicit information to prevent them.

(U) To be sure, this situation is different from the usual self-defense justification, and indeed, it overlaps with elements of the necessity defense. Self-defense as usually discussed involves using force against an individual who is about to conduct the attack. In the current circumstances, however, an enemy combatant in detention does not himself present a threat of harm. He is not actually carrying out the attack, rather he has participated in the planning and preparation for the attack, or merely has knowledge of the attack through his memborship in the organization. Nonetheless, leading scholarly commentators believe that interrogation of such individuals using methods that might violate Section 2340A would be justified under the doctrine of self-defense, because the combatant by aiding and promoting the terrorist plot "has culpably caused the situation here someone might get hurt. If hurting him is the only means to prevent the death or injury of others put at risk by his actions, such torture should be permissible, and on the same basis that self-defense is permissible." Michael S. Moore, Torture and the Balance of Evils, 23 Israel L. Rev. 280, 323 (1989) (symposium on Israel's Landau Commission Report). [23] See also Alan M. Dershowitz, Is It Necessary to Apply "Physical Pressure" to Terrorists-and to Lie about it?, 23 Israel L. Rev. 192, 199-200 (1989). Thus, some commentators believe that by helping to create the theat of loss of life, terrorists become culpable for the threat even though they do not actually carry out the attack itself. If necessary, they may be hurt in an interrogation because they are part of the mechanism that has set the attack in motion, just as is someone who feeds ammunition or targeting information to an attacker. Moore, at 323.

(U) A claim by an individual of the defense of another would be supported by the fact that in this case, the nation itself is under attack and has the right to self-defense. This fact can bolser and support an individual claim of self-defense in a prosecution, according to the Supreme Court in In re Neagle, 135 U.S. 1 (1890). In that case, the State of California arrested and helf deputy U.S. Marshal Neagle for shooting and killing the assailant of Supreme Court Justice Field. In granting the writ of habeas corpus for Neagle's release, the Supreme Court did not rely alone upon marshal's right to defend another or his right to self-defense. Rather, the Court found that Neagle, as an agent of the United States and of the executive branch, was justified in the killing because in protecting Justice Field, he was acting pursuant to the executive branch's inherent constitutional authority to protect the United States government. Id. at 67 ("We cannot doubt the power of the president to take measures for the protection of a judge of one of the courts of the United States who, while in the discharge of the duties of his office, is threatened with a personal attack which may probably result in his death.") That authority derives, according to the Court, from the President's power under Article II to take care that the laws are faithfully executed. In other words, Neagle as a federal officer not only could raise self-defense or defense of another, but also could defend his actions on the ground that he was implementing the Executive Branch's authority to protect the United States government.

(U) If the right to defend the national government can be raised as a defense in an individual prosecution as Neagle suggests, then a government defendant, acting in his official capacity, should be able to argue that any conduct that arguably violated a criminal prohibition was undertaken pursuant to more than just individual self-defense or defense of another. In addition, the defendant could claim that he was fullfilling the Executive Branch's authority to protect the federal government, and the nation, from attack. The September 11 attacks have already triggered that authority, as recognized both under domestic and international law. Following the example of In re Neagle, we conclude that a government defendant may also argue that his conduct of an interrogation properly authorized, is justified on the basis of protecting the nation from attack.

(U) There can be little doubt that the nation's right to self-defense has been triggered under out law. The Constitution announces that one of its purposes is "to provide for the common defense." U.S. Const., Preamble. Article I, § 8 declares that Congress is to exercise its powers to "provide for the common defense." See also 2 Pub. Papers of Ronald Reagan 920,921 1988-89) (right to self-defense recognized by Article 61 of the U.N. Charter). The President has particular responsibility and power to take steps to defend the nation and its people. In re Neagle, 135 U.S at 64. See also U.S. Const., art. IV, § 4 ("The United States shall...protect [each of the States] against Invasion"). As Commander-in-Chief and Chief Executive, he may use the Armed Forces to protect the nation and its people. See, e.g., United States v. Verdug-Urquidez, 494 U.S. 259,273 (1990) Totten v. United States, 92 U.S. 105, 106 (1876). As the Supreme Court observed in The Prize Cases, 67 U.S. (2 Black) 635 (1862), in response to an armed attack on the United States "the President is not only authorized but bound to resist force by force ...without waiting for any special legislative authority." ld. at 668. The September 11 events were a direct attack on the United States, and as we have explained above, the President has authorized the use of military force with the support of Congress.[24]

(U) As DOJ has made clear in opinions involving the war on al Qaida, the nation's right to self-defense has been triggered by the events on September 11. If a government defendant were to harm an enemy combatant during an interrogation in manner that might arguably violate criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaida terrorist network. In that case, DOJ believes that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions. This national and international version of the right to self-defense could supplement and bolster the goverment defendant's individual right.



[22] (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.
[23] (U) Moore distinguishes that case from one in which a person has information that could stop a terrorist attack, but who does not take a hand in the terrorist activity itself, such as an innocent person who learns of the attack from her spouse. Moore, 23 Israel L. Rev. at 324. Such individuals, Moore finds, would not be subject to the use of force in self-defense, although they might under the doctrine of necessity.
[24] (U) While the President's constitutional determination alone is sufficient to justify the nation's resort to self-defense, it also bears noting that the right to self-defense is further recognized under international law. Article 51 of the U.N. Charter declares that "[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken the measures necessary to maintain international peace and security." The attacks of September 11, 2004, clearly consitute an armed attack against the United States, and indeed were the latest in a long history of al Qaida sponsored attacks against the United States. This conclusion was acknowledged by the United Nations Security Council on September 29, 2001, when it unanimously adoped Resolution 1373 explicitly "reaffirming the inherent right of individual and collective defense as recognized by the charter of the United Nations. This right of self-defense is a right to effective self-defense. In other words, the victim state has the right to use force against the aggressor who has initiated an "armed attack" until the threat was abated. The United States, through its military and intelligence personnel, has a right recognized by Article 51 to continue using force until such time as the threat posed by al Qaida and other terrorist groups connected to the September 11th attack is completely ended." Other treaties re-affirm the right of the United States to use force in its self-defense. See, e.g., Inter-American Treaty of Reciprocal Assistance, art. 3, Sept 2, 1947 T.I.A.S. No. 1838, 21 U.N.T.S 77 (Rio Treaty); North Atlantic Treaty, art. 5, Apr. 4, 1949, 3 Stat. 2241, 34 U.N.T.S 243.


d. Military Law Enforcement Actions[edit]

(U) Use of force in military law enforcement is authorized for (1) self-defense and defense of others against a hostile person when in imminent danger of death or serious bodily harm by the hostile person; (2) to prevent the actual theft or or sabotage of assets vital to national security; (3) to prevent the actual theft or sabotage of resources that are inherently dangerous to others; (4) to prevent the commission of a serious crime that invovles imminent danger of death or serious bodily harm; (5) to prevent the destruction of vital public utilities or similar critical infrastructure; (6) for apprehension; and (7) to prevent escape. (DODD 5210.56 1 Nov 2001). These justifications contemplate the use of force against a person who has committed, is committing, or is about to commit, a serious offense. Although we are not aware or any authority that applies these concepts in the interrogation context, the justified use of force in military law enforcement may provide useful comparisons to the use of force against a detainee to extract intelligence for the specific purpost of preventing a serious and imminent terrorist incident.

e. Superior Orders[edit]

(U) Under both international law and U.S. law, an order to commit an obviously criminal act, such as the wanton killing of a noncombatant or the torture of a prisoner, is an unlawful order and will not relieve a subordinate of his responsibility to comply with the law of armed conflict. [25] Only if the individual did not know of the unlawfulness of an order, and he could not reasonably be expected under the circumstances to recognize the order as unlawful, will the defense of obedience of a superior order protect a subordinate from the consequences of violation of the law of armed conflict.[26]

(U) Under international law, the fact that a war crime is committed persuant to the orders of a military or civilian superior does not by itself relieve the subordinate committing it from criminal responsibility under international law.[27] It may, however, be considered in mitigation of punishment.[28]

(U) For instance, the Charter of the International Military Tribunal at Nuremberg, art. 8, stated:

The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.[29]

(U) Similarly, the Statute for the International Tribunal for Yugoslavia, and the Statute for the International Criminal Tribunal for Rwanda provide (in articles 7(4) & 6(4), respectively) provide:

The fact that an accused person acted pursuant to an order of a Government or a superior shall not relieve him of criminal responsibility, but may be considered in anticipation of punishment if the Tribunal determines that justice so requires.

(U) As to the general attitude taken by military tribunals toward the plea of superior orders, the following statement is representative:

It cannot be questioned that acts done in time of war under the military authority of an enemy cannot involve and criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war. Implicit obedience to orders of superior officers 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.” [30]

(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. [31]

(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.


[25] (U) See Section 6.1.4, Annotated Supplement to the Commander's Handbook on the Law of Naval Operations (NWP 1-14M 1997)
[26] (U) ld
[27] (U) The International Criminal Court also takes this view. Article 33 of the Rome Statute, recognizes that: "1. The fact that a crime within the jurisdiction of the Courst has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful."
[28] (U) ld., at §6.2.5.5.1.
[29] (U) See U.S. Naval War College, International Law Documents, at 1944-45, 255 (1946).
[30] (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).
[31] (U) This inference does not apply to a patently illegal order, such as one that directs the confession of a crime. (Article 90, UCMJ).


4. Lack of DOJ Representation for DOD Personnel Charged with a Criminal Offense[edit]

(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. [32]


[32] (U) 28 CFR 50.15 (a)(4)


B. Federal Civil Statutes[edit]

1. 28 U.S.C. 1350[edit]

(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”. [33] 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. [34] 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. [35] 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, [36] 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 Department of Justice has argued that Section 1350 does not provide a cause of action and is merely jurisdictional in nature. The Department of Justice is currently studying whether to participate in the ongoing Section 1350 litigation.


[33] (U) 28 U.S.C § 1350, the Alien Tort Claim Act (ATCA).
[34] (U) See, for example, Abebe-Jira v. Negewo, 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.”
[35] (U) Al Odah v. United States, (D.D.C., 2002)
[36] (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.”


2. Torture Victims Protection Act (TVPA)[edit]

(U) In 1992, President Bush signed into law the Torture Victims Protection Act of 1991. [37] 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, 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) [38] It thus appears that the TVPS does not apply to the conduct of U.S. agents acting under the color of law.


[37] (U) Pub. L. No. 102-256, 106 Stat. 73, 28 U.S.C § 1350 (note).
[38] (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.


C. Applicability of the United States Constitution[edit]

1. Applicability of the Constitution to aliens Outside the United States[edit]

(U) Nonresident enemy aliens do not enjoy constitutional rights outside the sovereign territory of the United States. [39] 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. [40] 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.


[39] (U) Eisenstrager 764.
[40] (U) Al Odah v. United States, (D.D.C., 2002).


2. The Constitution Defining U.S. Obligations Under International Law[edit]

(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 Convention’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. [41] 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 or the 8th Amendment. See, Johnson v. Eisenberger, 339 U.S. 763 (1950) and Verdugo-Urquidez, 494 U.S. 259 (1990).


[41] (U) Articles of ratification, 21 Oct 1994: “I. 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


a. Eighth Amendment[edit]

(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” [42] 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 “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.

Farmer v. Brennan 511 U.S. 825, 837 (1994). This standard requires greater culpability than mere negligence. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Wilson v. Seiter, 501 U.S. 294, 302 (1991) (“mere negligence would satisfy neither [the Whitely standard of malicious and sadistic infliction] nor the more lenient deliberate indifference standard”) (internal quotation marks omitted).

(U) The second line of cases considers the use of force against prisoners. The situation often arises in cases addressing the use of force while quelling prison disturbances. In cases involving the excessive use of force the central question is whether the force was applied with good intentions in an attempt to restore order or maliciously and sadistically with the purpose of causing harm. [43] Malicious and sadistic use of force always violates contemporary standards of decency and would constitute cruel and unusual punishment. [44] The courts apply a subjective test when examining intent of the official. In determining whether a correctional officer has used excessive force in violation of the Eighth Amendment, courts look to several factors including: (1) “the need for the application of force”; (2) “the relationship between the need and the amount of force that was used”; (3) “the extent of injury inflicted”; (4) “the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them”; and (5) “any efforts made to temper the severity of a forceful response.” [45] Great deference is given to the prison official in the carrying out of his duties. [46]

(U) One of the Supreme Court’s most recent opinions on conditions of confinement — Hope v. Pelzer, 122 S.Ct. 2508 (2002) — illustrates the Court’s focus on the necessity of the actions undertaken in response to a disturbance in determining the officer’s subjective of mind. [47] In Hope, following an “exchange of vulgar remarks” between the inmate Hope and an officer, the two got into a “wrestling match”. Id at 2512. Additional officers intervened and restraines Hope. See Id. These officers then took Hope back to prison. Once there, they required him to take off his shirt and then attached him to the hitching post, where he remained in the sun for the next seven hours. See Id. at 2512-13. During this time, Hope received no bathroom breaks. He was given water only once or twice and at least one guard taunted him about being thirsty. See Id. at 2513. The Supreme Court concluded that the facts Hope alleged stated an “obvious” Eighth Amendment violation. Id at 2514. The obviousness of this violation stemmed from the utter lack of necessity for the actions the guards undertook. The Court emphasized that “any safety concerns” arising from the suffle between Hope and the officer “had long since abated by the time [Hope] was attached to the hitching post” and that there was a “clear lack of an emergency situation”. Id. As a result, the Court found 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). As with excessive force, no court has encountered the precise circumstances here under conditions of confinement jurisprudences. Nontheless, there can be no more compelling governemnt interest than that which is presented here and, depending upon the precise factual circumstances of an interrogation, e.g., where there is credible information that could avert a threat, deprivations that may be caused would not be wanton or unnecessary.


[42] (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.
[43] (U) Actions taken in "good-faith ... to maintain or restore discipline" do not constitute excessive force. Whitley v. Albers, 475 U.S. (1986))
[44] (U) Hudson v. McMillian, 503 U.S. 1, 9 (1992)
[45] (U) Whitley at 321.
[46] (U) Whitley v. Albers, 475 U.S. (1986)
[47] (U) Although the officers’ actions in Hope were undertaken in response to a scuffle between an inmate and a guard, the case is more properly thought of a “conditions of confinement” case rather than an “excessive force” case. By examining the officers’ actions through the “deliberate indifference standard” the Court analyzed it as a “conditions of confinement” case. The deliberate indifference standard is inapplicable to claims of excessive force.


b. Fifth Amendment and Fourteenth Amendment [48][edit]

(U) All persons within the territory of the United States are entitled to protections of Due Process as provided by the 5th and 14th Ammendments, including corporations, aliens, and presumptively citizens seeking readmission to the United States. However, the Due Process Clause does not apply to enemy alien belligerents engaged in hostilities against the United States and/or tried by military tribunals outside the territorial jurisdiction of the United States.[49] The Eisentrager doctrine works to prevent access by enemy belligerents, captured and held abroad, to U.S. courts. Further, in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court held that aliens outside the United States did not have Fourth Amendment rights against the U.S. government. Indeed, in that case, the Court observed that extension of constitutional rights to aliens outside the United States would interfere with the military operations against the nation's enemies.

(U) In the detainee context, the standards of the Due Process Clauses are relevant due to the U.S. Reservation to the Torture Convention's definition of cruel, inhuman, and degrading treatment, which the United States has defined to mean conduct prohibited under the Due Process Clause of the 5th and 14th Amendments (in addition to the standards under the 8th Amendment discussed above). The Due Process jurisprudence is divided into two distinct categories--procedural due process and substantive due process. Procedural due process is manifest in issues pertaining to the provision of adequate administrative and/or judicial process, including notice and an opportunity to be heard. Substantive due process involves questions of force being excessive in light of the government interest being addressed. In the detainee context, the limits of substantive due process define the scope of permissible interrogation techniques that may be applied to unlawful combatants held outside the United States.

(U) Under the Fifth Amendment right to Due Process, substantive due process protects an individual from "the exercise of power without any reasonable justification in the service of any legitimate governmental objective." County of Scramento v. Lewis, 523 U.S. 833, 846 (1998). Under substantive due process "only the most egregious official conduct can be said to be arbitrary in the constitutional sense." Id at 846 (internal quotation marks ommited). That conduct must "shock[] the conscience." See generally id; Ronchin v. California, 342 U.S. 165 (1952).[50] By contrast to deprivations in procedural due process, which cannot occur so long as the government affords adequate processes government actions that "shock the conscience" are prohibited irrespective of the procedures the government may employ in undertaking those actions. See generally Ronchin v. California, 342 U.S. 164 (1952).

(U) To schock the conscience, the conduct at issue must involve more than mere negligence by the government official. See County of Sacramento, 523 U.S. at 849. See also Daniel v. Williams, 474 U.S. 327 (1986) ("Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property.") (collecting cases). Instead, "[I]t is...behavior on the other end of the culpability spectrum that would most probably support a substantive due process claim: conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level." See County of Sacramento, 523 U.S. at 849. In some circumstances, however, recklessness or gross negligence may suffice. See id. The requisite level of culpability is ultimately "not...subject to mechanical application in unfamiliar territory." Id. at 850. As the Court explained explained: "deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances beforce any abuse of power is condemned as conscience shocking." Id. As a general matter, deliberate indifference would be an appropriate standard where there is a real possibility for actual deliberation. In other circumstances, however, where quick decisions must be made (such as responding to a prison riot), a heightened level of culpability is more appropriate. See id. at 851 - 52.

(U) The schock-the-conscience standard appears to be an evolving one as the Court's most recent opinion regarding this standard emphasized that the conscience shocked was "contemporay conscience." Id. at 847 n.8 (emphasis added). The court explained that while a judgement of what shocks the conscience "may be informed by a history of liberty protection, [] it necessarily reflects a traditional understanding of executive behavior, of comtemporary practice, and of the standards of blame generally applied to them." Id. Despite the evolving nature of the standard, the standard is objective rather than subjective. The Supreme Court has cautioned that although "the gloss has ... has not been fixed" as to what substantive due process is, judges "may not drawn on [their] merely personal and private notions and disregard the limits that bind judges in their judicial function... [T]hese limites are derived from considerations that are fused in the whole nature of our judicial process." Rochin. 342 U.S. at 170. See also, United States v. Lovasco, 431 U.S. 783 (1973) (reaffirming that the test is objective rather than subjective). As the Court further explained, the conduct at issue must "do more than offend some fastidious squeamishness or private sentimentalism' in order to violate due process. Rochin, 342 U.S. at 172.

(U) The Supreme Court also clarified in Ingraham v. Wright, 430 U.S. 651 (1977), that under substantive due process, "[t]here is, of course, a de minimis level of imposition with which the Constitution is not converned." Id. at 674. And as Fourth Circuit has noted, it is a "principle...inherent in the Eight [Amendment] and [substantive due process" that "[n]ot ..every malevolent touch by a prison guard gives rise to a federal cause of action. See Johnson v. Glick, 481 F.2d at 1033 ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights")." Riley v. Dorton, 155 F.3d 1159, 1167 (4th Cir. 1997) (qouting Hudson, 503 U.S. at 9). Instead, "the [shock-the-conscience]... inquiry...[is] whether the force applied caused injury so severe, and was so dispropotionate to the need presented and so inspired by malice or sadism...that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience." Webb b. McCullough, 828 F.2d 1151, 1158 (6th Cir. 1987). Examples of physical brutality that "shock the conscience" include: the rape of a plaintiff by uniformed officer, see Jones v. Wellham 104 F.3d 620 (4thCir. 1997); a police officer striking a plaintiff in retaliation for the plaintiff photographing the police officer, see Shillinford v. Holmes, 634 F.2d 263 (5th Cir. 1981); police officer shot a fleeing suspect's legs without any probably cause other than the suspect's running and failing to stop, see Aldridge v. Mullins, 377 F. Supp. 850 (M.D. Tenn. 1972) aff'd, 474 1189 (6th Cir. 1973). Moreover, beating or sufficiently threatening someone during the course of an interrogation can constitute conscience-shocking behavior. See Gray v. Spillman, 925 F.2d 90,91 (4th Cir. 1991) (plaintiff was beaten and threatened with further beating if he did not confess). By contrast, for example, actions such as verbal insults and an angry slap of "medium foce" did not constitute behavior that "shocked the conscience." See Riley v. Dorton, 115 F.3d 1159, 1168 n.4 (4th Cir. 1997) (finding claims that such behavior shocked the conscience "meritless").

(U) Physical brutality is not the only conduct that may meed the schock-the-conscience standard. In Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992) (en banc), the Ninth Circuit held that a certain psychologically-coercive interrogation techniques could constitute a violation of substantive due process. The interrogators techniquest were "designed to instill stress, hopelessness, and fear, and to break [the suspect's] resistance." Id. at 1229. The officers planned to ignore any request for a lawyer and to ignore the suspect's right to remain silent, with the express purpose that any statements he might offer would help keep him from testifying in his own defense. See id. at 1249. It was this express purpose that the court found to be the "aggravating factor" that lead it to conclude that the conduct of the police "shocked the conscience." Id. at 1249. The court reasoned that while "it is a legitimate purpose of police investigation to gather evidence and muster information that will surround a guilty defendant and make it difficult if not imposible for him to escape justice[,]" "When the methods chosen to gather evidence and information are deliverately unlawful and flout the Constitution, the legitimacy is lost." Id. at 1250. In Wilkins v. May, 872 F.2d 190 (7th Cir. 1989), the Seventh Circuit found that severe mental distress inflicted on a suspect could be a basis for a substantive due process claim. See id. at 195. See also Rhodes v. Robinson, 612 F.2d 766, 771 (3d Cir. 1979) (claim of emotional harm could be the basis of a substantive due process claim). The Wilkins court found that under certain circumstances interrogating a suspect with a gun at his head could violate those rights. See 872 F.2d at 195. Whether it would rise to the level of violation depended upon whether the plaintiff was able to show "misconduct that a reasonable person would find so beyond the norm of proper police prodecure as to schok the conscience, and that it is calculated to induce not merely momentary fear or anxiety, but severe mental suffering, in the plaintiff." Id. On the other hand, we nte that merely deceiving the suspect does not shock the conscience, see, e.g., United States v. Bryam, 145 F.3d 405 (1st Cir. 1998) (assuring defendant he was not in danger of prosecution did not shock the conscience) nor does the use of sympathy or friends as intermediaries, see, e.g., United States v. Simtob, 901 F.2d 779, 809 (9th Cir. 1990).

(U) Although substantive due process jurisprudence is not necessarily uniform in all applications, several principles emerge. First, whethere conduct is conscience-shocking turns in part on whehther it is without any justification, i.e., it is "inspired by malice or sadism." Webb, 828 F .2d at 1158. Although unlawful combatants may not pose a threat to others in the classic sense seen in substantive due process cases, the detainees here may be able to prevent great physical injury to countless others through their knowledge of future attacks. By contrast, if the interrogation methods were undertaken solely to produce severe mental suffering, they might shock the conscience. Second, the official must have acted with more than mere negligence. Because, generally speaking, there will be time for deliberation as to the methods of interrogation that will be employed, it is likely that the culpability requirement here is deliberate indifference. See County of Sacramento, 523 U.S. at 851-52. Thus, an official must know of a serious risk to the health or safety of a detainee and he must act in conscious disregard for that risk in order to violate due process standards. Third, this standard permits some physical contact. Employing a shove or slap as part of an interrogation would not run afoul of this standard. Fourth, the detainee must sustain some sort of injury as a result of the conduct, e.g., physical injury or severe mental distress, in order for the constraints of substantive due process to be applicable.


[48] (U) Because the Due Process considerations under the 5th and 14th amendments are the same for our purposes, this analysis considers them together.
[49] (U) Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1 (1946).
[50] (U) In the seminal case of Ronchin v California, 342 U.S. 165 (1952), the police had some information that the defendant was selling drugs. Three officers went to and entered the defendant's home without a warrant and forced open the door to defendant's bedroom. Upon opening the door, the officers saw two pills and asked the defendant about them. The defendant promptly put them in his mouth. The officers "jumped upon him and attempted to extract the capsules." Id. at 166. The police tried to pull the pills out of his mouth but despite considerable struggle the defendant swallowed them. The police then took the defendant to a hospital where a doctor forced an ermetic solution into the defendant's stomach by sticking a tube down his throat and ito his stomach, which cause the defendant to vomit up the pills. The pills did in fact contain morphine. See id. The Court found that the actions of the police officers "shocked the conscience" and therefore violated Rochin's due process rights. Id at 170.


D. Juristdiction of Federal Courts[edit]

1. Jurisdiction to Consider Constitutional Claims[edit]

(U) The Federal habeas statue provides that courts may only grant the writ "within their respective jurisdictions." This has been interpereted to limit a court's subject matter jurisdiction over habeas cases to those in which a custodian lies within the jurisdiction. For U.S. citizens, habeas jurisdiction lies regardless of where the detention occurs. The habeas action must be brought in the district in which a custodian resides or, if all custodians are outside the United States, in the District of Columbia. For aliens, there is no habeas jurisdiction outside the sovereign territory of the United States.51

(U) As construed by the courts, habeas jurisdiction is coterminous with the reach of constitutional rights, although that result is a matter of statutory construction. Congress has the power to extend habeas jurisdiction beyond the reach of constitutional rights but may not place greater restrictions on it.

(U) In Johnson v. Eisentrager, the supreme court rules that enemy aliens, captured on the field of battle abroad by the U.S. Armed Forces, tried abroad for war crimes, and incarcerated abroad do not have access to the U.S. courts52 over a habeas petition filed by German nationals seized by U.S. soldiers in China. Eisentrager considered habeas corpus petitions by German soldiers captured during WWII in China supporting the Japanese, convicted by Military Commission sitting in China, and incarcerated in Germany and concluded that United States courts lacked jurisdiction.53

(U) Recently, unlawful combatants detained at Guantanamo Bay, Cuba (GTMO) have sought review in U.S. district court though the writ of habeas corpus, 28 U.S.C. § 2241.54

(U) Two courts have examined, and rejected, petitioners' claims that U.S. exclusive jursidiction over GTMO results in a form of "de facto sovereignty" and, therefore, vests habeas jurisdiction in the federal courts.

2. Other Bases for Federal Jurisdiction[edit]

(U) In addition, one group of GTMO detainees has challenged confinement through the Alien Tort Claims Act (ATCA) and the Administrative Procedures Act (APA). The courts have declined to excercise jurisdiction on those theories in each case to date. Petitioners in Al Odah attempted to circumbent the territorial limitations of habeas by bringing their action under the APA and ATCA, however the U.S. Court of appeals for the District of Columbia held that the courts did not have jurisdiction with respect to the petitioner' claims under any theory, finding that their status as aliens unconnected to the United States makes them beyond the jurisdiction of the federal courts. See Odah v. United States, 321 F.3rd 1134 (DC Cir. 2003).55

(U) The court also held, in the alternative, that it lacked jurisdiction even if petitioners were not barred by the exclusive nature of habeas actions. The ATCA provides the "district courts shall have original jurisdiction of 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." 18 U.S.C. § 1350. The ATCA, although it provides federal jurisdiction over private suits, does not waive sovereign immunity for a suit against the United States. The courts have held that AOA's waiver of sovereign immunity for nonmonetary damages can theoretically be used to maintain an ATCA action against the United States. The Al Odah Court, however, found that the APA's excemption for "military authority exercised in the field in time of war or in occupied territory" precluded the ATCA.

3. The Military Extraterritorial Jurisdiction Act[edit]

(U) The Military Extraterritorial Jurisdiction Act (MEJA), 18 U.S.C. § 3261 et seq, extends Federal criminal jurisdiction for serious Federal offenses committed outside to civilian persons accompanying the Armed Forces (e.g., civilian employees and contractor employees), and to members of the Armed Forces who committed a criminal act while subject to the UCMJ but who are no longer subject to the UCMJ or who committed the offense with a defendant not subject to the UCMJ. The standard is tat if the conduct by the individual would "constiture an offense punishible by imprisonment for more than one year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States." (emphasis added).


51 (U) Johnson v Eisentrager, 339 U.S. 763 (1950). 52 (U) Johnson v Eisentrager, 339 U.S. 763, 777 (1950). "We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States." With those words, the Supreme Court held that: "a nonresident enemy alien has no access to our courts in wartime." 53 (U) For a fuller discussion of Habeas Corpus law as it applies to Naval Base, Guantanamo Bay, see memorandum, LCDR F. Greg Bowman of 29 Jan 02, subj: CRIMINAL JURISDICTION AND ITS EFFECTS OF ABAILABILITY OF THE WRIT OF HABEAS CORPUS AT U.S. NAVAL BASE, GUANTANAMO BAY, CUBA (on file). 54 (U) Coalition of Clergy v. Bush, 189 F. Supp. 2d 1036 (C.D. Cal.), affirmed in part and vacated in part, 310 F.3d 1153 (9th Cir. 2002); Rasul v. Bush, 215 F.2d 55 (D.D.C. 2002). 55 (U) The concurring opinion in Odah argued that, in addition to not providing a means of jurisdiction, the ACTA also did not provide an independent cause of action.


E. The Uniform Code of Military Justice[edit]

(U) The Uniform Code of Military Justice (UCMJ) applies to United States Forces on active duty, at all times and in all places throughtout the world. Members of the Reserve component and retired regular officers can, under certain circumstances, also be subject to the UCMJ, as can civilians accompanying the Armed Forces in time of war under certain circumstances.56


[56] (U) Article 2 UCMJ; Rules for Courts-Martial, Rule 202, and Discussion.



1. Offenses[edit]

(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: [57]


[57] (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.


a. Cruelty, Oppression or Maltreatment, Art 93[edit]

(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[edit]

(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[edit]

(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) 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[edit]

(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[edit]

(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[edit]

(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[edit]

(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 perfrormance of those duties. MCM IV-24; MJB, Section 3-16-4. Customs of the service 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[edit]

(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)[edit]

(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.

a. Self-Defense[edit]

(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 serious 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 bodily injuries. MJB, Section 5-2. (See also the discussion of “Self-Defense” under the discussion of Federal law, supra.)

b. Defense of another[edit]

(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[edit]

(U) The defense arises when an accused is doing a lawful act in a lawful manner, free of any negligence, and unforeseeable or unintentional death or bodily harm occurs. MJB, Section 5-4.

d. Mistake of Fact[edit]

(U) If ignorance or mistake of a fact 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[edit]

(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 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)[edit]

(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 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[edit]

(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.)

3. Legal doctrine could render specific conduct, otherwise criminal, not unlawful[edit]

See discussion of Commander-in-Chief authority, supra.

IV. Considerations Affecting Policy[edit]

A. Historical Role of U.S. Armed Forces[edit]

1. Background[edit]

(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[edit]

(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, 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[edit]

(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.

(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[edit]

(U) The President's Military Order that addresses the detention, treatment, and trial of certain non-citizens in the war against terrorism, [58] provides inter alia, that any individual subject to the order be "treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria; afforded adequate food, dringking water, shelter, clothing, and medical treatment; and allowed the free exercise of religion consistent with the requirements of the detention."

(U) A Department of Defense memorandum [59] to the Chairman of the Joint Chiefs of Staff, with instructions to forward it to the Combatant Commanders, stated that "the United States has determined that Al Qaida and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for the purposes of the Geneva Conventions of 1949." The memorandum further directed that "[t]he Combatant Commanders shall in detaining Al Qaida and Taliban individuals under the control of the Department of Defense treat them humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949."

(U) The President has directed that "[a]s a matter of policy, the United States Armed Forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." [60]


[58] (U) Military Order - Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, President of the United States, November 13, 2001.
[59] (U) Department of Defense Memorandum - Status of Taliban and Al Qaida, Secretary of Defense, January 19, 2002.
[60] (U) White House Memorandum - Humane Treatment of al Qaida and Taliban Detainees, President of the United States, February 7, 2002.


C. DOD-Specific Policy Considerations[edit]

(U) (The information in this section was derived from guidance provided by the Office of the Assistant Secretary of Defense (Special Operations and Low-Intensity Conflict))

(U) The first priority of any detainee interrogation is to obtain intelligence on imminent or planned terrorist attacks against the United States and its citizens or interests A clearly related priority is to obtain intelligence to enable the United States to conduct the ongoing war on terrorism effectively. Detainee interrogations have proven instrumental to the United States efforts to uncover terrorist cells and thwart planned attacks.

(U) The Secretary of the Army (DoD lead for criminal investigations) will continue to assess, concurrently, the value of information on detainee activites for prosecution considerations. See War Crimes and Related Investigations Within The US Central Command Area Of operations, Secretary of Defense, January 19, 2002.

(U) In the event of a request to shift the priority of interrogations from intelligence gathering to prosecution considerations, the following factors, among others, should be considered before such a request is approved:

  • the nature of the impending threat to national security and to individuals;
  • the imminence of the threat;
  • the ability of the detainee to provide useful information to eliminate the threat; and
  • potential benefit derived from an effective interrogation compared to the potential benefit from a better opportunity for effective prosecution.

(U) For routine interrogations, standard U.S. Armed Forces doctrine will be utilized.

(U) For interrogations involving exceptional techniques [61] apprived by the Secretary of Defense, standard doctrine may be used as well as the specifically authorized exceptional techniques. However, such interrogations may be applied only in limited, designated settings approved by SECDEF or his designee, staffed by personnel specifically trained in their use and subject to a command/decision authority at a level specifically designated by the SECDEF for this purpose.

(U) Choice of interrogation techniques involves a risk benefit analysis in each case, bounded by the limits of DOD policy and U.S. law. When assessing whether to use exceptional interrogations techniques, consideration should be given to the possible adverse effects on U.S. Armed Forces culture and self-image, which at times in the past may have suffered due to percieved law of war violations. DOD policy, reflected in the DOD Law of War program implemented in 1979 and in subsequent directives, greatly restored the culture and self-image of the U.S. Armed Forces by establishing high benchmarks of compliance with the principles and spirit of the law of war, and thereby humane treatment of all persons in U.S. Armed Forces' custody. [62] In addition, consideration should be given to whether implementation of such exceptional techniques is likely to result in adverse effects on DOD personnel who become POWs, including possible perceptions by other nations that the United States is loweing standards related to the treatment of prisoners, generally.

(U) All interrogation techniques should be implemented deliberately following a documented strategy designed to gain the willing cooperation of the detainee using the least intrusive interrogation techniques and methods.

(U) All interrogations involving exceptional methods approved by the appropriate authority must be applied in the context of a comprehensive plan for their use, singly or in combination with other techniques. At a minimum, the plan should include:

  • Appropriate approval authority;
  • Supervisory requirements to insure appropriate application of methods;
  • Specifics on the application of technique(s) including appropriate duration intervals between applications and events that would require termination of the technique; and
  • Requirements for the presence or availability (as appropriate) of qualified medical personnel.

(U) Implementation of approved exceptional techniques must be approved at the command authority level specified for the particular method.


[61] (U) In this context, an "exceptional" technique is one that is more aggressive than routine techniques and is designated an exceptional technique by the SECDEF, requiring special procedures and levels of approval for use.
[62] see DODD 5100.77 DoD Law of War Program, para 5.3.1 (9 Dec 98, canceling DODD 5100.77 of 30 Jul 79); DODD 2310.1 DoD Program for EPOW and Other Detainees, para 3.1 (18 Aug 94); CJCSJ 5819.01B implementation of the DoD LOW Program, para 41 (25 Mar 02).


D. Potential Effects on Prosecutions[edit]

(U) Although the primary purpose of detainee interrogations is obtaining intelligence on imminent or planned terrorist attacks against the United States and its citizens or interests, the United States may later decide to prosecute detainees. This section will discuss whether evidence obtained in interrogations will be admissible in either military commissions or U.S. court proceedings.

(U) The stated objective of detainee interrogations is to obtain information of intelligence value. Information obtained as a result of interrogations may later be used in criminal prosecutions. Depending on the techniques employed, the admissibility of any information may depend on the forum considering the evidence. In addition, the admissibility of an admission or confession necessarily will be fact-specific, in that the exact techniques used with a specific detainee will determine whether the information will be admissible. Although the goal of intelligence interrogation is to produce a willingly cooperative and compliant subject, a successful interrogation nevertheless may produce a statement that might be argued to be involuntary for purposes of criminal proceedings.

(U) Prosecution by the United States is possible in a military commission, court-martial, or in an Article III court.

(U) The standard of admissibility for military commissions is simply whether the evidence has probative value to a reasonable person. (Military Commisions Order No 1, para 8 (D)(1)). Although this is a fairly low threshold, many of the techniques may place a burden on the prosecution's ability to convince commission members that the evidences meets even that lower standard. As the interrogation methods increase in intensity, the likelihood that the information will be deemed coerced and involuntary and thus held inadmissible increases. Although voluntariness of the confession is not a specific theshold question of admissibility, it can reasonably be expected that the defense will raise voluntariness, challenging the probative value of the information and hence, its admissibility. If the statement is admitted, voluntariness will undoubtedly be a factor considered by the members in determining the weight to be given the information.

(U) Any trials taking place in either U.S. federal courts or by courts-martial will be conducted pursuant to statutory and constitutional standards and limitations. To be admissible, statements made during interrogation must be determined to be voluntary. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The judge must first determine whether the statements were the product of free will, i.e., the defendant's will was not overborne by the interrogators. Mincey v. Arizona, 437 U.S. 385 (1978) (the defendant's will was simply overborne and due process of law requires that statements obtained as these were cannot be used in any way against the defendant at his trial). This issue can also be raised before the trier of fact. If the actions taken to secure a statment constitute torture, the statement would be inadmissible. Brown v. Mississippi, 297 U.S. 278 (1936) (confessions procured by means "revolting to the sense of justice" could not be used to secure a conviction). It should be noted that conduct does not need to rise to the level of "torture" or "cruel, inhuman and degrading treatment or punishment" for it to cause a statement to be considered involuntary, and therefore idadmissible. As such, the more agressive the interrogation technique used, the greater the likelihood it could adversely affect the admissibility of any acquired statements or confessions.

(U) Mechanism for Challenge. The defense can be expected to challenge the detainee statements through a motion to supress the detainee statement or to challenge the entire proceeding through a motion to dismiss for egregious prosecutorial misconduct.

(U) Other Considerations. One of the Department of Defense's stated objectives is to use the detainees' statements in support of ongoing and future prosecutions. The method of obtaining these statements and its effect on voluntariness may also affect the usability of these statements against other accused in any criminal forum. Statements produced where the will of the detainee has been overborne will in all likelihood be viewed as inherently suspect and of questionable value.

(U) Consideration must be given to the public's reaction to methods of interrogation that may affect the military commission process. The more coercive the method, the greater the likelihood that the method will be met with significant domestic and international resistance. This in turn may lower international and domestic acceptance of the military commission process as a whole. In addition, the military commission will be faced with balancing the stated objective of open proceedings with the need not to publicize interrogation techniques. Consequently, having these techniques become public or substantially closing the proceedings in order to protect the techniques from disclosure could be counterproductive and could undermine confidence in the outcome. Finally, the timing of the prosecutions must be considered. Revelation of the techniques presumably will reduce their effectiveness against current and future detainees.


E. Inernational Considerations That May Affect Policy Determinations[edit]

(U) This section provides a discussion of international law that, although not binding on the United States, could be cited by other countries to support the proposition that the interrogation techniques used by the U.S. contravene international legal standards. The purpose of providing this international law discussion is to inform the Department of Defense's policy considerations when deciding if, when and how to employ the interrogation techniques against unlawful combatants held outside the United States.

1. Geneva Conventions[edit]

(U) To the extent that other nation states do not concede the U.S. position that the Geneva Conventions do not apply to the detainees, there are several provisions of the Third Geneva Convention that may be relevant considerations regarding interrogation techniques.[63] Article 13 requires that POWs must at all times be treated humanely, and that any unlawful act or omission by the detaining power causes death or seriously endangers the health of a POW will be regarded as a serious breach of the Convention. In addition, POWs must be protected against acts of violence or intimidation. Under Article 14 of the Convention, POWs are entitled to respect for their person and their honor. Article 17 prohibits physical or mental torture and any other form of coercion of POWs in order to secure information. POWs who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment. Article 130 provids that torture or inhuman treatment, or willfully causing great suffering or serious injury to body or health of a POW are considered "grave breaches" of the Convention. Article 129 of the Convention requires Parties to search for, extradite or prosecute those persons alleged to have committed, or have ordered to be committed, grave breaches.

(U) These articles of the Third Geneva Convention may provide an opportunity for other States Parties to allege that they consider the United States to be in violation of the Convention through its treatment of detainees. To the extent any such treatment could be considered by them to be torture or inhuman treatment, such acts could be considered "grave breaches" and punishable as war crimes.

(U) In addition, even if they argue that the Taliban and al Qaida detainees are not entitled to POW status, they may consider that the guarantees contained in Article 75 of the First Additional Protocol to the Geneva Conventions are measuers by which the United State's actions could be evaluated. See, infra, this Section, paragraph 3. Additional arguements may be made by other nations that the protections of the Geneva Conventions are comprehensive and apply to unlawful combatants.[64]


[63] (U) Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
[64] (U) For example, other countries may argue as follows: The central theme of the Geneva Conventions is humanity. With regard to persons affected by armed conflict, Pictet's Commentary states: "In short, all the particular cases we have just been considering confirm a general principle which is embodied in all four Geneva Conventions of 1949. Every person in enemy hands must have some status under international law; he is either a prisoner of war, and as such covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention, There is no intermediate status; nobody in enemy hands can be outside the law." Pictet, Commentary to the Fourth Geneva Convention Relative to the Protection of Civilian Person in Time of War (GC IV), Article 4, Parahaph 4, ICRC, Geneva, 1958. Other nations may disagree with the U.S. government view that GC IV protects those persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners of war. GC IV, Article 4; see generally Army Field Manual 27-10, The Laws of Land Warfare (1956), paragraphs 246-248. In fact, Pictet's Commentary on Article 4, paragraph 4 of GC IV states: "if, for some reason, prisoner of war status - to take one example - were denied to them [persons who find themselves in the hands of a party to the conflict], they would become protected persons under the present Convention." Further GC IV, Article 32 specifically prohibits the torture, corporal punishment, or physical suffering of protected persons. Accordingly, the United States may face the argument from other nations that the President may not place these detainees in an intermediate status, outside the law, and then arguably subject them to torture.


2.Convention Against Torture[edit]

(U) Article 7 of the Torture Convention requires that a State Party either extradite or prosecute a person found within its territory who has been alleged to have committed acts of torture.65 As discussed, supra, the United States implemented this provision in Chapter 113C of Title 18, United States Code, which provides for federal criminal jurisdiction over an extraterritorial act or attempted act of torture, if teh alleged offender is present in the United States, regardless of the nationality of the victim or the alleged offender. All States Parties to the Convention are required to establish this same jurisdiction in their countries. Accordingly, governments could potentially assert jurisdiction over U.S. personnel found in their territory, and attempt to prosecute them for conduct they consider to be violations of the Torture Convention.


[65] (U) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, entered into force for the United States on Nov. 20, 1994, 1465 U.N.T.S. 85.


3. Customary International Law/Views of Other Nations[edit]

(U) "Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation."[66]

(U) The United States' primary obligation concerning torture and other related practices derives from the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment and Punishment. Although not consistent with U.S. views, some international commentators maintain that various human rights conventions and declarations (including the Geneva Conventions) represent "customary international law" binding on the United States. [67]

(U) Although not binding on the United States, the following international human rights instruments may inform the views of other nations as they assess the actions of the United States relative to detainees.

(U) One of the first major international declarations on human rights protections was the 1948 Universal Declaration of Human Rights (adopted Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810). This Declaration, which is not itself binding or enforcable against the United States, states at Article 5 that "no one shall be subjected to the torture or to cruel, inhuman or degrading treatment or punishment." Although there is a specific definition for "torture" in the subsequent 1994 Convention Against Torture, there is no commonly accepted definition in the international community of the terms "cruel, inhuman, and degrading punishment or treatment."

(U) The American Convention on Human Rights[68] was signed by the United States in 1977 but the United States never ratified it. It states in Article 5 that "no one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment," and that "all persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person."

(U) In 1975, the U.N. General Assembly adopted the Delcaration on Protection of All Persons from Being Subjected to Torture and other Cruel, Inhumane or Degrading Punishment (G.A. Res 34/52, U.N. Doc. A/10034). As with previous U.N/ declarations, the Dec;aration itself is not binding on nations. This Delcaration provides (Article 2) that the proscribed activities are "an offense to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and funamental freedoms proclaimed in the Universal Declaration of Human Rights."

(U) Article 75 of the First Additional Protocol to the Geneva Conventions, to which the U.S. is not a party, prohibits physical and mental torture, outrages upon personal dignity (in particular to humiliating and defrading treatment), or threats to commit any of the foregoing against detainees "who do not benefit from more favorable treatment under the [Geneva] Conventions."[69] (The First Additional Protocol does not define any of these terms.) According to International Committee of the Red Cross (ICRC) Commentaries, where the status of a prisoner of war or of a protected person is denied to an individual, the protection of Article 75 must be provided to them at a minimum.[70]

(U) The Geneva Convention Relative to the Protection of Civilian Persons in Time of War provides, inter alia, that persons protected by the Civilians Convention are those who, at a given moment and in any manner whatsoever, find themselves in the hands of a Party to the conflict that is a country of which they are not nationals.[71] Such persons are at all times to be treated humanely and protected against all acts of violence or threats thereof. The Department of Justice has determined that this conventions applies only to civilians but does not apply to unlawful combatants.[72]



[66] (U) The Restatement (Third) of the Foreign Relations Law of the U.S, § 102(2).
[67] (U) See, e.g., McDougal, Lasswell, and Chen, Human Rights and World Public Order (1980).
[68] (U) 1144 U.N.T.S. 123 (Nov. 22, 1969).
[69] (U) Protocal Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflict (Protocol 1), June 8, 1977, 1125 U.N.T.S. 3.
[70] (U) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, at 863-65 (1987)
[71] (U) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature Aug. 12, 1949, 6 U.S.T. 3365, 75 U.N.T.S. 287, see Articles 4 and 27.
[72] (U) Other nations, which, unlike the United States, have accepted Article 75, may argue that since the Taliban and al-Qaida detainees are not entitled to POW status under the Geneva Conventions, Article 75 should be applicable as customary international law, notwithstanding their status as unlawful combatants.


4. International Criminal Court[edit]

(S/NF) (U) The Rome Statute of the International Criminal Court (ICC), [73] which the U.S. has made clear it opposes and to which it has no intention of becoming a party contains provisions prohibiting the infliction of severe physical or mental pain or suffering (including for such purposes as obtaining information). These violations are considered by the signatories to be war crimes of torture and of inhuman treatment (Article 8) and crimes against humanity (Article 7). The affected persons must be protected under one or more of the Geneva Conventions in order for the prohibition to be applicable. Ohter governments could take a position contrary to the U.S. position on this point. For those State Parties to the ICC that take the position that the ICC grants universal jurisdiction to detain individuals suspected of committing prohibited acts, if these countires obtain control over U.S. personnel, they may view it as within their jurisdiction to surrender such personnel to the ICC. In an effort to preclude this possibility, the United States is currently negotiating "Article 98" agreements with as many countries as possible to provide for protection of U.S. personnel from surrender to the ICC. [74]

(S/NF) (U) States with whom the United States has not concluded Article 98 agreements, and that perceive certain interrogation techniques to constitute torture or inhuman treatment, may attempt to use the Rome Statute to prosecute individuals found in their territory responsible for such interrogations. [75] In such cases, the U.S. Government will reject as illegitimate any attempt by the ICC, or a state on its behalf, to assert the jurisdiction of the Rome Statute over U.S. nationals without the prior express consent of the United States.

[73] (U) Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF. 183/9 (1998).

[74] (U) Parties to the Rome Statute are obligated to surrender individuals at the request of the ICC for prosecution, unless such surrender would be inconsistent with the requested state's obligations "under an international agreement pursuant to which the consent of the sending state is required to surrender a person of that state to the ICC." (Rome Statute, Article 98 (2)). While the U.S. is not a party to the Rome Statute, Article 98 agreements would provide an exception to an ICC party's general obligation to surrender persons.

[75] (U) Article 25(3) of the Rome Statute provides individual criminal responsibility for a person who, inter alia, "orders, solicits, or induces" or otherwise facilitates through aiding, abetting, or assisting in the commission of a crime.

V. Techniques[edit]

(U) The Purpose of all interviews and interrogations is to get the most information from a detainee with the least intrusive method, always applied in a humane and lawful manner with sufficient oversight by trained investigators or interrogators. Operating instructions must be developed based on command policies to insure uniform, careful, and safe application of any interrogations of detainees.

(S/NF)(U) Interrogations must always be planned, deliberate actions that take into account numerous, often interlocking factors such as a detainee's current and past performance in both detention and interrogation, a detainee's emotional and physical strengths and weaknesses, an assessment of possible approaches that may work on a certain detainee in an effort to gain the trust of the detainee, strenghts and weaknesses of interrogators, and augmentation by other personnel for a certain detainee based on other factors.

(S/NF)(U) Interrogation approaches are designed to manipulate the detainee's emotions and weaknesses to gain his willing cooperation. Interrogation operations are never conducted in a vacuum; they are conducted in close cooperation with the units detaining the individuals. The policies established by the detaining units that pertain to searching, silencing, and segregating also play a role in the interrogation of a detainee. Detainee interrogation involves developing a plan tailored to an individual and approved by senior interrogators. Strict adherence to policies/standard operating procedures governing the administration of interrogation techniques and oversight is essential.

(S/NF)(U) Listed below are interrogation techniques all believed to be effective but with varying degrees of utility. Techniques 1-19,22-26 and 30, applied singly, are purely verbal and/or involve no physical contact that could produce pain or harm and no threat of pain or harm. It is important that interrogators be provided reasonable latitude to vary techniques depending on the detainee's culture, strengths, weaknesses, environtment, ... extent of training in resistance techniques as well as the urgency of obtaining information that the detainee is known to have. Each of the techniques requested or suggested for possible use for detainees by USSOUTHCOM and USCENTCOM is included. Some descriptions include certain limiting parameters; these have been judged appropriate by senier interrogators as to effectiveness.

(S/NF)(U) While techniques are considered individually within this analysis, it must be understood that in practice, techniques are usually used in comination; the cumulative effect of all techniques to be employed must be considered before any decisions are made regarding approval for particular situations. The title of a particular technique is not always desciptive of a particular technique. With respect to the employment of any techniques involving physical contact, stress or that could produce physical pain or harm, a detailed explanation of that technique must be provided to the decision authority prior to any decision.

Note: Techniques 1-17 are further explained in Field Manual 34-52.

1. (S/NF)(U) Direct: Asking straightforward questions.

2. (S/NF)(U) Incentive/Removal of Incentive: Providing a reward or removing a privilege, above and beyond those that are required by the Geneva Convention, from detainees, (Privileges above and beyond POW-required privileges).

3. (S/NF)(U) Emotional Love: Playing on the love a detainee has for an indivdual or group.

4. (S/NF)(U) Emotional Hate: Playing on the hatred a detainee has for an individual or group.

5. (S/NF)(U) Fear Up Harsh: Significantly increasing the fear level in a detainee.

6. (S/NF)(U) Fear Up Mild: Moderately increasing the fear level in a detainee.

7. (S/NF)(U) Reduced Fear: Reducing the fear level in a detainee.

8. (S/NF)(U) Pride and Ego Up: Boosting the ego of a detainee.

9. (S/NF)(U) Pride and Ego Down: Attacking or insulting the ego of a detainee, not beyond the limits that would apply to a POW.

10. (S/NF)(U) Futility: Invoking the feeling futility of a detainee.

11. (S/NF)(U) We Know All: Convincing the detainee that the interogator knows the answer to questions he asks the detainee.

12. (S/NF)(U) Establish Your Identity: Convincing the detainee that the interrogator has mistaken for someone else.

13. (S/NF)(U) Repitition Approach: Continuously repeating the same question to the detainee within interrogation periods of normal duration.

14. (S/NF)(U) File and Dossier: Convincing the detainee that the interrogator has a damning and inaccurate file, which must be fixed.

15. (S/NF)(U) Mutt and Jeff: A team consisting of a friendly and harsh interrogator. The harsh interrogator might emply the Pride and Ego Down technique.

16. (S/NF)(U) Rapid Fire: Questioning in rapid succession without allowing detainee to answer.

17. (S/NF)(U) Silence: Staring at the detainee to encourage discomfort.

18. (S/NF)(U) Change of Scenery Up: Removing the detainee from a standard interrogation setting (generally to a location more pleasant, but no worse).

19. (S/NF)(U) Change of Scenery Down: Removing the detainee from the standard interrogation setting and placing him in a setting that may be less comfortable; would not constitute a substantial change in environtmental quality.

20. (S/NF)(U) Hooding: This technique is questioning the detainee with a blindfold in place. For interrogation purposes, the blindfold is not on other than during interrogation.

21. (S/NF)(U) Mild Physical Contact: Lightly touching a detainee or lightly poking the detainee in a completely non-injurous manner. This also includes softly grabbing of shoulders to get the detainee's attention or to comfort the detainee.

22. (S/NF)(U) Dietary Manipulation: Changing the diet of a detainee; no intended deprivation of food or water; no adverse medical or cultural effect and without intent to deprive a subject of food or water, e.g., hot rations to MREs.

23. (S/NF)(U) Environmental Manipulation: Altering the environment to create moderate discomfort (e.g., adjusting temperature or introducing an unpleasant smell). Conditions would not be such that they would injure the detainee. Detainee would be accompanied by interrogator at all times.

24. (S/NF)(U) Sleep Adjustment: Adjusting the sleeping times of the detainee (e.g., reversing sleep sycles from night to day.) This technique is NOT sleep deprivation.

25. (S/NF)(U) False Flag: Convincing the detainee that individuals from a country other than the United States are interrogating him.

26. (S/NF)(U) Threat of Transfer: Threatening to transfer the subject to a 3rd country that subject is likely to fear would subject him to torture or death. (The threat would not be acted upon nor would the threat include any information beyond the naming of the receiving country.)

(S/NF)(U) The Following list includes additional techniques that are considered effective by interrogators, some of which have been requested by USCENTCOM and USSOUTHCOM. They are more aggressive counter-resistance techniques that may be appropriate for detainees who are extremely resistant to the above techniquees, and who the interrogators strongly believe have vital information. All of the following techinques indicate the need for technique-specialized training and written procedures to insure the safety of all persons, along with approoriate, specified levels of approval and notification for each technique.

27. (S/NF)(U) Isolation: Isolating the detainee from other detainees while still complying with basic standards of treatment.

28. (S/NF)(U) Use of Prolonged Interrogations: The continued use of a series of approaches that extend over a long period of time (e.g.,20 hours per day per interrogation).

29. (S/NF)(U) Forced Grooming: Forcing the detainee to shave hair or beard. (Force applied with intention to avoid injury. Would not use force that would cause serious injury.)

30. (S/NF)(U) Prolonged Standing: Lengthy standing in a "normal" position (non-stress). This has been successful, but shoud never make the detainee exhausted to the point of weakness or collapse. Not enforced by physical restraints. Not to exceed four hours in a 24-hour period.

31. (S/NF)(U) Sleep Deprivation: Keeping the detainee awake for an extended period of time. (Allowing individual to rest briefly and then awakening him, repeatedly.) Not to exceed 4 days in succession.

32. (S/NF)(U) Physical Training: Requiring detainees to exercise (perform ordinary physical exercises actions) (e.g., running, jumping jacks); not to exceed 15 minutes in a two-hour period; not more than two cycles, per 24-hour periods) Assists in generating compliance and fatiguing the detainees. No enforced compliance.

33. (S/NF)(U) Face slap/ Stomach slap: A quick glancing slap to the fleshy part of the cheek or stomach. These techniques are used strictly as shock measures and do not cause pain or injury. They are only effective if used once or twice together. After the second time on a detainee, it will lose the shock effect. Limited to two slaps per application; no more than two applications per interrogation.

34. (S/NF)(U) Removal of Clothing: Potential removal of all clothing; removal to be done by military police if not agreed to by the subject. Creating a feeling of helplessness and dependence. This technique must be monitored to ensure the environmental conditions are such that this technique does not injure the detainee.

35. (S/NF)(U) Increasing Anxiety by Use of Averions: Introducing factors that of themselves create anxiety but do not create terror or mental trauma (e.g., simple presence of a dog without directly threatening action). This technique requires that the commander to develop specific and detailed safeguards to insure detainee's safety.

VI. Evaluation of Useful Techniques[edit]

(S/NF)(U) The working group considered each of the techniques enumerated in Section V,supra, in light of the legal, historical, policy and operational considerations discussed in this paper. In the course of that examination it became apparent that any decision whethere to authorize a technique is essentially a risk benifit analysis that generally takes into account the expected utility of the technique, the likelihood that any technique will be in violation of domestic or international law, and verious policy considerations. Generally, the legal analysis that was applied is that understood to comport with the views of the Department of Justice. Although the United States, as a practical matter, may be the arbiter of international law in deciding its application to our national activities, the views of other nations are relevant in considering their reactions, potential effects on our captured personnel in future conflicts, and possible liability to prosecution in other countries and international forums for interrogators, supervisors and commanders involved in interrogation processes and decisions.

(S/NF)(U) The Conclusions section of this analysis, infra, summarizes salient conclusions that were applied to our analysis of individual techniques. As is suggests, the lawfulness and the effectiveness of individual techniques will, in practice, depend on the specific facts. The lawfulness will depend on the specific facts. The lawfulness will depend in significant part on procedural protections that demonstrate a legitimate purpose and that there was no intent to inflict a significant menta or physical pain - and, in fact, avoid that. Because of this, the assessment of each technique presumed that the safeguards and procedures described in the "DOD-Specific Policy Considerations" section of this paper would be in place. The importance of this is underscored by the fact that, in practice, techniques are usually applied in combination, and as the legal analysis of this paper indicates, the significance and effect on an individual detainee of the specific combination of techniques employed, and their manner of application will determine the lawfulness of any particular interrogation.


(S/NF)(U) In addition, the lawfulness of the application of any particular technique, or combination of techniques, may depend on the practical necessity for imposition of the more exceptional techniques. As the analysis explains, legal justification for action that could otherwise be unlawful (e.g., relying upon national necessity and self-defense) depends in large part on whether the specific circumstances would justify the imposition of more aggressive techniques. Interrogation of an individual known to have facts essential to prevent an immedia threat of catastrophic harm to large populations may support use of "exceptional" techniques, particularly when milder techniques have been unavailing. But this is a determination that will always be case-specific. Consequently, use of each technique should be a decision level appropriate to the gravity of the particular case (both for the nation and for the detainee).


(S/NF)(U) The chart at Attachment 3 reflects the result of the risk / benefit assessment for each technique considered, "scored" for each technique, relevant considerations and given an overall recommendation. In addition, it notes specific techniques that, based on this evaluation, should be considered "exceptional techniques" (marked with an "E") subject to particular limitations described in the "DOD-Specific Policy Considerations" section (generally, not routinely available to interrogators, use limited to specifically designated locations and specifically trained interrogators, special safeguards, and appropriately senior employment decision levels specified). For each "exceptional" technique, a recommendation for employment decision level is indicated as well.

VII. Conclusions Relevant to Interrogation of Unlawful Combatants Under DOD Control Outside the United States[edit]

(S/NF)(U) As a result of the foregoing analysis of legal, policy, historical, and operational considerations, the following general conclusions can be drawn relevant to interrogation of unlawful combatants captured in the war on terrorism under DOD control outside the United States:

(S/NF)(U) Under the Third Geneva Convention, U.S. forces are required to treat captured personnel as POWs until an official determination is made as to their status. Once a determinaion has been made that captured personnel are unlawful combatants, as is currently the case with captured Taliban and Al Qaida operatives, they do not have a right to the protections of the Third Geneva Convention.

(U) Customary international law does not provide legally-enforceable restrictions on the interrogation of unlawful combatants under DOD control outside the United States.

(U) The United States Constitution does not protect those individuals who are not United States citizens and who are outside the sovereign territory of the United States.


(S/NF)(U) Under the Torture Convention, no person may be subjected to torture. Torture is defined as an act specifically intended to inflict severe physical or mental pain or suffering and that mental or suffering refers to prolonged mental harm caused by or resulting from (1) the international infliction or threadtened infliction of severe physical pain or suffering; (2) the administration or application, or threatened application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality; (3) the threat of imminent death; or (4) the threat that another person will 'imminently be subjected to death, severe physical pain or suffering, or the administration or applicaton, or threatened application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

(S/NF)(U) Under the Torture Convention, no person may be subjected to cruel, inhuman or degrading treatment. The United States has defined its obligations under the Torture Convention as conduct prohibited by the 5th, 8th, and 14th Amendments to the Constitution of the United States. These terms, as defined by U.S. courts, could be understood to mean: to inflict pain or harm without a legitimate purpose; to inflict pain or injury for malicious or sadistic reasons; to deny the minimal civilized measures of life's necessities and such denial refelcts a deliberate indifference to health and safety; and to apply force and cause injury so severe and so disproportionate to the legitimate government interest being served that it amounts to a brutal and inhumane abuse of official power literally shocking the conscience.

(U) For actions outside the United States and the special maritime and territorial jurisdiction of the United States, 18 U.S.C. § 2340 applies. For actions occurring within the United States and the special maritime and territorial jurisdiction of the United States, various Federal statutes would apply.

(S/NF)(U) The President has directed, pursuant to his Military Order dated November 13, 2001, that the U.S. Armed Forces treat detainees humanely and that the detainees be afforded adequate food, drinking water, shelter, clothing and medical treatment.

(S/NF)(U) Pursuant to the Confidential Presidential Determination, dated February 7, 2002, the U.S Armed Forces are to treat detainees in a manner consistent with the principles of Geneva, to the extent appropriate and consistent with military necessity.

(U) Under Article 10 of the Torture Convention, the United States is obligated to ensure that law enforcement and military personnel involved in interrogations are educated and informed regarding the prohibition against torture, and under Article 11, systematic reviews of interrogation rules, methods, and practices are also required.

(U) Members of the U.S. Armed Forces are, at all times and all places, subject to prosecution under the UCMJ for, among other offenses, acts which constitute assault, assault consummated by a battery, assault with the intent to inflict grievous bodily harm, manslaughter, unpremeditated murder, and maltreatment of those subject to their orders. Under certain circumstances, civilians accompanying the Armed Forces may be subject to the UCMJ.

(U) Civilian employees and employees of DOD contractors may be subject to prosecution under the Federal Criminal Code for, among other offenses, act which constitute assault (in various degrees), maiming, manslaughter, and murder.

(S/NF)(U) Defenses relating to Commander-in-Chief atuhority, necessity and self-defense or defense of others may be available to individuals whose actions would otherwise constitute these crimes, and the extent of availability of those defenses will be fact-specific. Certain relevant offenses require specific intent to inflict particular degrees of harm or pain, which could be refuted by evidence to the contrary (e.g., procedural safeguards). Where the Commander-in-Chief authority is being relied upon, a Presidential written directive would server to memorialize this authority.

(S/NF)(U) The lawfulness and appropriateness of the use of many of the interrogation techniques we examined can only be determined by reference to specific details of their application, such as appropriateness and safety for the particular detainee, adequacy of supervision, specifics of the application including their duration, intervals between applications, combination with other techniques, and safeguards to avoid harm (including termination criteria and the presence of availibility of qualified medical personnel.) (We have recommened appropriate guidance and protections.)


(S/NF)(U) Other nations, including major partner nations, may consider use of techniques more aggressive that those appropriate for POWs violative of international law or their own domestic law, potentially making U.S. personnel involved in the use of such techniques subject to prosecution for perceived human rights violations in other nations or to being surrendered to international fora, such as the ICC; this has the potential to impact future operations and overseas travel of such personnel.

(S/NF)(U) Some nations may assert that the U.S. use of techniques more aggressive than those appropriate for POWs justifies similar treatment for captured U.S. personnel.

(S/NF)(U) Should information regarding the use of more aggressive interrogation techniques than have been used traditionally by U.S. forces become public, it is likely to be exaggerated or distorted in the U.S. and international media accounts, and may produce an adverse effect on support for the war on terrorism.

(S/NF)(U) The more aggressive the interrogation technique used, the greater the likelihood that it will affect adversely the admissibility of any acquired statements or confessions in prosecutions against the person interrogated, including in military commissions (to a lesser extent than in other U.S. courts).

(S/NF)(U) Carefully drawn procedures intended to prevent unlawful levels of pain or harm not only serve to avoid unlawful results but should provide evidence helpful to demonstrate that the specific intent required for certain offenses did not exist.

(S/NF)(U) General use of exceptional techniques (generally, having substantially greater risk than those currently, routinely used by U.S. Armed Forces interrogators), even though lawful, may create uncertainty among interrogators regarding the appropriate limits of interrogations. They should therefore be employed with careful procedures and only when fully justified.

(S/NF)(U) Participation by U.S. military personel in interrogations which use techniques that are more aggressive than those appropriate for POWs would constitute a significant departure from traditional U.S. military norms and could have an adverse impact on the cultural self-image of U.S. military forces. [76]

(S/NF)(U) The use of exceptional interrogation techniques should be limited to specified strategic interrogation facilities; when there is a good basis to believe that the detainee possesses critical intelligence; when the detainee is medically and operationally evaluated as suitable (considering all techniques in combination); when interrogators are specifically trained for the technique(s); a specific interrogation plan (including reasonable safeguards, limits on duration, intervals between applications, termination criteria and the presence or availability of qualified medical personnel); when there is appropriate supervision; and, after obtaining appropriate specified senior approval level for use with any specific detainee (after considering the foregoing and receiving legal advice).


VIII. Recommendations[edit]

(U) We recommend:

(S/NF)(U) 1. The working group recommends that techniques 1-26 on the attached chart be approved for use with unlawful combatants outside the United States, subjecte to the general limitations set forth in this Legal and Policy Analysis; and that techniques 27-35 be approved for use with unlawful combatants outside the United States subject to the general limitations as well as the specific limitations regarding "exceptional" techniques as follows: conducted at strategic interrogation facilities; where there is a good basis to believe that the detainee possesses critical lintelligence; the detainee is medically and operationaqlly evaluated as suitable (considering all techniques to be used in combination); interrogators are specifically trained for the technique(s); a specific interrogation plan (including reasonable safeguards, limits on duration, intervals between applications, termination criteria and the presence or availability of qualified medical personnel) is developed; appropriate supervision is provided; and, appropriate specified senior level approval is given for use with any specific detainee (after considering the foregoing and receiving legal advice).

(S/NF)(U) 2. SECDEF approve the strategic interrogation facilities that are authorized to use the "exceptional techniques{" (such facilities at this time include Guantanamo, Cuba; additional strategic interrogation facilities will be approved on a case-by-case basis).

(S/NF)(U) 3. As the Commander-in-Chief authority is vested in the President, we recommend that any exercise of that authority by DOD personnel be confirmed in writing through Presidential directive or other document.

(S/NF)(U) 4. That DOD policy directives and implementing guidance be amended as necessary to reflect the determinations in paragraph one and subsequent determinations concerning additional possible techniques.

(S/NF)(U) 5. That commanders and supervisors, and their legal advisers, involved with the decisions related to employment of "exceptional techniques" receive specialized training regarding the legal and policy considerations relevant to interrogations that make use of such techniques.

(S/NF)(U) 6. That OASD (PA) prepare a press plan to anticipate and address potential public inquiries and misunderstandings regarding appropriate interrogation techniques.

(S/NF)(U) 7. That a procedure be established for requesting approval of additional interrogation techniques similar to that for requesting "supplementals" for ROEs; the process should require the requestor to describe the technique in detail, justify its utility, describe the potential effects on subjects, known as hazards and proposed safeguards, provide a legal analysis, and recommend an appropriate decision level regarding use on specific subjects. This procedure should ensure that SECDEF is the approval authority for the addition of any technique that could be considered equivalent in degree to any of the "exceptional techniques" addressed in this report (in the chart numbers 27-35, labeled with an "E"), and that he establish the specific decision level required for application of such techniques.

(S/NF)(U) 8. DOD establish specific understandings with other agencies using DOD detailed interrogators regarding the permissible scope of the DOD interrogator's activities.

Classified by: Secretary Rumsfeld Reason: 1.5(C) Declassify on: 10 years


[76] Those techniques considered in this review that raise this concern are relatively few in number and generally indicated by yellow or red (or green with a significant footnote) under major partner views in Attachment 3.


General Comments on Techniques Chart[edit]

"E" denotes recommendation that technique be considered "exceptional" and subject to the following limitations: (i) limited to use only at strategic interrogation facilities; (ii) there is a good basis to believe that the detainee possesses critical intelligence; (iii) the detainee is medically and operationally evaluated as suitable (considering all techniques to be used in combination); (iv) interrogators are specifically trained for the technique(s); (v) a specific interrogation plan (including reasonable safeguards, limits on duration, intervals between applications, termination criteria and the presence or availability of qualified medical personnel) has been developed; (vi) there is appropriate supervision; and, (vii) there is appropriate specified senior approval for use with any specific detainee (after considering the foregoing and receiving legal advice.

"(Cbt.C)" denotes recommendation that approval level for use of technique for a specific detainee be no lower than the Combatant Commander.

"(GO/FO)" denotes recommendation that approval level for use of technique for a specific detainee be no lower than a General Officer or Flag Officer. The title of a particular technique is not always fully descriptive of a particular technique. With respect to the employment of any techniques involving physical contact or stress or that could produce physical pain or harm, a detailed explanation of that technique must be provided to the decision authority prior to any decision.

Recommendation: The working group recommends that techniques 1-26 be approved for use with unlawful combatants outside the U.S. subject to the general limitations set forth in the Legal and Policy Analysis; and that techniques 27-35 be approved for use with unlawful combatants outside the U.S. subject to the general limitations as well as the specific limitations regarding "exceptional" techniques set forth above and in the Legal and Policy Analysis. If additional techniques are requested for use in the future, sufficient information regarding the technique must be provided to the appropriate command authority so that a legal/policy analysis can be conducted and recommendations for use made.

Note: Green denotes no significant constraint on use raised by the respective area of consideration listed at the top of each column, assuming adequate procedural safeguards. Yellow indicates area of consideration does not preclude use but there are problematic aspects that cannot be eliminated by procedural safeguards (see footnote). Red indicates major issue in area of consideration that cannot be eliminated.

Footnotes

1. These recommendations assume that procedures and safeguards substantially similar to those set forth in the "Policy" Section of the Legal and Policy Analysis are followed. The analysis relates to each individual technique; use of techniques in combination could significantly affect the legality and wisdom of their application.

2. Techniques 1-19, 22-26, 30 and 35, applied singly, are purely verbal and/or involve no physical contact that could produce pain or harm; no threat of pain or harm.

3. As a matter of policy, for countries that assert that POW protections should apply to detainees: Other nations may consider that provision and retention of religious items (e.g., the Koran) are protected under international law (see, Geneva III, Article 34).

4. May affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

5. For countries that assert that POW protections apply to detainees: Article 17 of Geneva III provides. "Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."

6. As a matter of policy, for countries that assert that POW protections should apply to detainees: Would be inconsistent with Geneva III, Article 13 which provides that POWs must be protected against acts of intimidation.

7. As a matter of policy, for countries that assert that POW protections should apply to detainees: Possible that other nations would disregard "mild" aspect and use as justification for abuse of U.S. POWs.

8. International case law suggests that technique might in some circumstances be viewed by other countries as inhumane.

9. May affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

10. May significantly affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

11. The use of isolation as an interrogation technique requires detailed implementation instructions, including specific guidelines regarding the length of isolation, medical and psychological review, and approval for extensions of the length of isolation by the appropriate level in the chain of command.

12. To avoid implementation that could transgress, the use of isolation as an interrogation technique requires detailed implementation instructions, including specific guidelines regarding the length of isolation, medical and psychological review, and approval for extensions of the length of isolation by the appropriate level in the chain of command.

13. To avoid implementation that could transgress, the use of isolation as an interrogation technique requires detailed implementation instructions, including specific guidelines regarding the length of isolation, medical and psychological review, and approval for extensions of the length of isolation by the appropriate level in the chain of command.

14. Not known to have been generally used for interrogation purposes for longer than 30 days.

15. As a matter of policy, for countries that assert that POW protections should apply to detainees: Would be inconsistent with the requirements of Geneva III, Article 13 which provides that POWs must be protected against acts of intimidation; Article 14 which provides that POWs are entitled to respect for their person; Article 34 which prohibits coercion (see commentary to paragraph 4), and Article 126 which ensures access and basic standards of treatment.

16. May affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

17. Utility is "high" for the first four to five days, "medium" for the following four to six days, and "low" thereafter.

18. May significantly affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

19. Where there are religious or cultural sensitivities, this technique could raise issue of "degrading" if not applied in accordance with general limitations.

20. At practical level, may raise issues whether excessive force was used.

21. This technique has not been used historically by U.S. forces. As such, no color code was assigned.

22. This technique could be viewed by major partner nations as degrading in some circumstances.

23. May affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

24. As a matter of policy, for consideration of other nations' views, the Committee against Torture, established under Article 17 of the Convention Against Torture (CAT), has interpreted "sleep deprivation for prolonged periods" to be a violation of both Article 16 of the CAT as cruel, inhuman, or degrading treatment as well as constituting torture under Article 1 of the CAT. Concluding Observations of the Committee against Torture, U.N. Doc. A/52/44, paragraphs 253-260. See also, Judgment on the Interrogation Methods Applied by the GSS, Nos HC 5100/94, HC 4054/95, HC 5188/96, HC 7563/97, HC 7628/97, HC 1043/99 (Sup Ct of Israel, sitting as the High Court of Justice, Sep 6, 1999). Finally, the European Court of Human Rights (ECHR) has held that sleep deprivation, in conjunction with four other problematic techniques (wall standing, hooding, subjection to noise, and deprivation of food and drink), did constitute "inhuman and degrading treatment". Ireland v. United Kingdom, 25 Eur. Ct. H.R. (Ser. A) (1978).

25. May significantly affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

26. Knowledge of this technique may have a significant adverse effect on public opinion.

27. May affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

28. Technique used historically until the Vietnam war, however not officially sanctioned.

29. As a matter of policy, for consideration of other nations' views, the Committee against Torture has generally denounced the use of "moderate physical pressure" as a permissible interrogation technique. See also, Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (Ser. A) (1978) (spanking of student with three lashes of a birch rod violated European Convention on Human Rights). See also, Article 5 of the American Convention on Human Rights prohibits not only "torture" and "cruel, inhuman or degrading punishment or treatment" but it also provides that: "Every person has the right to have his physical, mental, and moral integrity respected."

30. As a matter of policy, other nations could interpret this as condoning assault on the detainee and encourage the use against U.S. POWs.

31. Potential to be subject to charge of assault in international jurisdictions.

32. May significantly affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).

33. Knowledge of this technique may have significant adverse effect on public opinion.

34. Depending on application of technique, could be construed as degrading.

35. At practical level, may raise issues whether excessive force was used as force may be required to remove clothing.

36. Other nations may use as excuse to apply to U.S. POWs.

37. Knowledge of this technique may have a significant adverse effect on public opinion.

38. Legal exposure would be dependant on specific technique employed. Depending on technique used and subject response, potential exists that technique could be viewed as violating Fifth/Eighth/Fourteenth Amendment standards, and therefore violate U.S. interpretation of Torture Convention.

39. Legal exposure would be dependant on specific technique employed. Depending on technique used and subject response, potential exists that technique could be viewed as violating Fifth/Eighth/Fourteenth Amendment standards, and therefore violate U.S. interpretation of Torture Convention.

40. Could provide basis for other nations to justify use of more aggravated mental techniques on U.S. POWs.

41. May significantly affect admissibility of statements provided based on voluntariness consideration (lesser issue for military commissions).


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