ACLU v. DOD, No. 08-1003 (D.D.C.)

U.S. Department of Justice
Criminal Division

OffiCI! ofille Anislant AI/orney Geneml

WasMnglan, D.C 10j30

August 24, 2009

Mr, Jamee] Jaffer

ACLU Foundation
Legal Department
125 Broad Street, 18 th Floor
New York, NY 10004-2400
Re:

American Civil Liberties Union v. Department of Defense, et al.,
No. I :08-cv-01003-RJL

Dear Mr. Jaffer:
This is in partial response to your Freedom ofInfonnation Act request dated April 22,
2008, to the Department of Justice Office of the Inspector General (DOJ OIG). The Office of the
Inspector General referred 398 pages of documents to the Criminal Division that are responsive
to the request, as modified by your later agreement to accept those documents actually considered
by the OIG in the course of its investigation. This letter responds to you regarding the
unclassified documents that originated in the Criminal Division.
There are additional documents that originated in the Criminal Division that are not
encompassed by this response. Those documents (11) contain classified infonnation and have
been sent to the CIA for consultation. Once we have received the CIA's comments regarding the
applicability ofFOIA exemptions to that infonnation, we will process them and be in further
contact with you,
The remaining documents were referred to the Central Intelligence Agency (CIA)[four
documents], the Department of Defense (000)[ one document], the 001 Office of Legal
Counsel (OLC)[nine documents, but two were duplicates], and the Federal Bureau of
[nvestigation (FBI)[one document]. 1L is my understanding that the FBI and DOD have reviewed
the documents referred to them and corresponded directly with you regarding their release. One
document originated in the National Security Council (NSC); it consists of forty pages of
various items of infonnation about the war on terrorism. It covers such topics as the public
diplomacy goal of the war, the legal authority to detain enemy combatants, the Geneva
Conventions and the status of detainees, the conditions of detention and treatment of detainees,
military commissions, and the standards of conduct for U.S. personnel who take part in military
operations. Il is a draft inter-agency document that was sent to the Department of Justice for
review and possible corrections and changes. It is exempt from mandatory release pursuant to
exemption (b)(5).

Enclosed are copies of the six unclassified documents that originated in the Criminal
Division. 1 have reviewed these documents and have detennined to release them in full or in
part and to withhold certain items, as described below. I am releasing the first two enclosed
documents to you without excisions as a matter of discretion, even though technically portions
may very weU be exempt. I am withholding the infonnation redacted from the released
documents pursuant to one or more of the following FOIA exemptions set forth in 5 U.S.c.
552(b):
(5)

which permits the withholding of inter·agency or intra~agencymemorandums or
letters which reflect the pre·decisional, deliberative processes of the Department,
and/or which consist of attorney work product prepared in anticipation of
litigation, and/or which consist of confidential attorney~cJient infonnation;

(6)

which pernlits the withholding of personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal
pnvacy;

(7)

which permits the withholding of records or infonnation compiled for law
enforcement purposes, but only to the extent that the production of such law
enforcement records or information ...
(C)

could reasonably be expected to constitute an
unwarranted invasion of personal privacy.

Although you are aware of this, I must infonn you that your client has a right to an
administrative appeal of this denial/partial denial of its request. The appeal should be addressed
to: The Office of Infonnation Policy, United States Department of Justice, 1425 New York Ave.,
NW, Suite 11050, Washington, DC 20530~OOOl. Both the envelope and the letter should be
clearly marked with the legend "FOlA Appeal." Department regulations provide that such
appeals must be received by the Office of lnfonnation Policy within sixty days of the date of this
letler. 28 C.F.R. 16.9. Jfyou exercise this right and your appeal is denied, you also have the
right to seek judicial review of this action in the federal judicial district (1) in which you reside,
(2) in which you have your principal place of business, (3) in which the records denied are
located, or (4) for the District of Columbia.

2

Sincerely,

Richard M. Rogers
Senior Counsel

Attachments

cc:

Marcia Sowles
Federal Programs
Civil Division

3

DOJ'S ACTIVITIES IN IRAO
Issue: What role is the Department of Justice playing in the United States Government's
efforts in Iraq?
Talking Points:

•

The Department of Justice is contributing to the United States and its coalition
partners' efforts in Iraq in three different respects: conducting law enforcement
operations to protect the United States; supporting Iraqi investigations and
prosecutions relating to war crimes by the Saddam Hussein regime; and providing
training and assistance to the Iraqi justice sector as a whole - including police,
prosecutors, judges, and corrections officials.

•

First, with regard to law enforcement operations, the Department of Justice
deployed FBI teams to Iraq shortly after the fall of Baghdad to assist in
investigations that had a nexus to the United States, including matters relating to
terrorism and espionage. FBI teams have been in Iraq since that time, and we
expect that there will be an FBI Legal Attache assigned to Embassy Baghdad.
[FBI to supplement, as appropriate, as to role! number ofagents already
deployed]

•

Second, in order to assist Iraqi efforts to prosecute war criminals from the prior
regime, the Department of Justice has created a War Crimes Advisory Office to
work with experts in the Iraqi government and in Non-Governmental
Organizations. This Office, which will be supported by the FBI and the United
States Marshals Service, is led by an experienced federal prosecutor who has also
served as a prosecutor at the Hague's International Tribunal for War Crimes in the
Fonner Yugoslavia. [War Crimes Advisory Ofjice/ODAG to supplement, as
appropriate]

•

Finally, in order to help establish the rule of law in Iraq, the Department of
Justice, with the support of the State Department, has launched an ambitious
effort to help train Iraqi police, prosecutors, judges, and corrections officials.
These programs are under the operational control of the Coalition Provisional
Authority ("CPA"). The programs are funded by the State Department, and
administered through two offices of the Criminal Division ofthe Department of
Justice: the International Criminal Investigative Training Assistance Program
("IeITAP"), which focuses on police and correctional officials; and the Office of
Overseas Prosecutorial Development, Assistance and Training ("OPDAT"),
which focuses on prosecutors and the judicial process.
•

Currently, the Justice Department has six federal prosecutors assigned to
Iraq under the auspices ofOPDAT. These prosecutors, at great personal
risk and sacrifice, have played a key role in establishing a new criminal
justice system in Iraq - a system that respects individual rights and due

C-Rm /38
DOJ01510BCRM

As of June 3, 2004

Status of Abu Ghraib-related Investigative Activities
Issue: What is the Department doing to investigate the Iraqi prisoner abuses by DoD personnel
at Abu Ghraib?
Talking Points:

•

Like all Americans, I am appalled and saddened by the abusive conduct that has been
reported.

•

There is a complicated framework, set by statute, policy, and longstanding practice, that
establishes the respective responsibility and jurisdiction of DoD and DOl to investigate
and prosecute current and fonner military personnel, as well as civilians employed by or
accompanying the anned forces. Under a longstanding MOU, crimes committed on a
military installation or related to scheduled military activities or matters normally tried by
court-martial will be investigated by the Department of Defense investigative agency
concerned. This framework includes an established protocol by which DoD refers cases
to DO] for prosecution when circumstances indicate that jurisdiction is appropriately
vested in DOl This framework reflects the reality that criminal conduct that occurs
during ongoing military operations will ordinarily be discovered and initially investigated
by the military. Our capacity to obtain evidence and witnesses from a war zone is, of
course, very limited.

•

On May 20, the Department of Justice received a referral from the Department of Defense
regarding a civilian contractor.in Iraq. We immediately opened an investigation into the
matter. As this is an ongoing investigation, I cannot offer further comment on the matter.

•

In addition to our work on this open investigation, we have asked DoD for additional
information regarding the conduct of civilian employees at Abu Ghraib, including
information on several specific individuals. Ifwe locate evidence indicating criminal
activity by others over whom we have jurisdiction, we will initiate formal investigations.
Of course, we must proceed prudently, given that DoD has apparently been investigating
these allegations for some time. We do not want to do anYthing to disrupt their
investigation.

DOJ015111CRM

As of June 4, 2004 10:08 a.m.

U.S. Department of Justice
Criminal Division

WashIngton, DC }0530

Co.."terferrorisrn Section

August 2, 2004

MEMORANDUM

TO:

Christopher A. Wray
Assistant Attorney General

THROUGH:

David Nahmias,
Deputy Assistant Attorney General

P11

rt/rh

THROUGH:

FROM:

SUBJECT:

n the Draft OLC Memorandum
e Fourth Geneva Convention I

Within the Criminal Division, the Counterterrorism Section has responsibility for
supervising prosecutions and providing guidance concerning violations under the federal war
crimes statute, 18 U.S.c. § 2441, when such offenses involve international terrorism. That
statute makes subject to prosecution, inter alia, any person who, whether inside or outside the
United States, commits a "grave breach" of any of the four Geneva Conventions of 1949, as long
as either the perpetrator or the victim is a member of the armed forces of the United States or a
U.S. national. Consequently, we take a particular interest in any Departmental guidance tending
to confine the scope of any such violation. We therefore appreciate the opportunity to review and
comment upon a draft OLC Memorandum to the General Counsel of the Department of Defense
addressing the question whether Taliban fighters enjoy protected status under the Geneva
Convention Relative to the Protection of Civilian Persons In Time of War, commonly referred to
as the "Fourth Geneva Convention" or "GC." While the time allotted for review precludes
extensive analysis of OLe's reasoning, and we have not had an opportunity to review a number
of the authorities referenced in OLC's draft memorandum. we offer the following comments and
observations.
Additional comments of the Domestic Security Section are being submitted in a separate
memorandum.
1

DOJ015154CRM

In broad and sweeping language, Article 4 of the Fourth Geneva Convention provides in

pertinent part as follows:
Persons protected by the Convention are those who, at a given moment and in any
manner whatsoever, find themselves, in the case of a conflict or occupation, in the
hands ora Party to the conflict or Occupying Power of which they are not
nationals.
Article 6 (italics added) further provides that, "[t]he present Convention shall apply from
the outset ofany conflict or occupation mentioned in Article 2. In the territory of Parties to the
conflict, the application of the present Convention shall cease on the general close of military
operations."
-4'-

As the OLC draft Memorandum explains, the FoUrth Geneva Convention therefore
protects two broad classes of civilian persons: (I) those who are in territory occupied by a
belligerent party; and (2) those, who during a conflict to which the Convention applies, find
themselves in the hands of the opposing party to the conflict.

Art. 42 of the Annex to Hague Convention No. IV Respecting the Laws and Customs
of War on Land (36 Stat. 2277 (1907) provides that "[t]erritory is considered occupied when it
2

2

DDJ015155CRM

is placed under the authority of the hostile army [and] extends only to the territory where such
authority has been established. and can be exercised."

3
DOJ015156CRM

) This Article is in Part ill Section 1, which is captioned "Provisions Common to the
Territories of the Parties to the Conflict and to Occupied Territories,"

4

OOJ015157CRM

'~wartz,

Bruce

~mber 27, 2005 6:30 PM

From:
SE:.nt:

Swartz. Bruce

To:
Sul:'ject:

FW: H36. Detainees· 000 Q&A (Control -9777)

Importance:

High

Attachments:

Fw: H36, Detainees - 000 Q&A (Control -9777)

Fw: H36, Oeto!linees
- 000 Q&A ( ...

BroJce:

I just sentlllllllllllllllomments on some QFRs.
actually s e ~ s my comments discuss.

Here is the original email so you can

Please let me know if you have any questions.
Thanks!

,

1

OOJ036494BS

·,swartz, Bruce
FroTt:
S,mt:
To:
es - DoD Q&A (Control-9777)

Su~ject:

Importance:

High

Attachments:

UCMJ Punitive Articles.doc; PMQ November 13, 2001.doc; Geneva IIl.doc; r190_B.pdf; SJC
QFRs.pdf; RE: 1PM Sept 27 LRM MBl1 9 - - DEFENSE Qs and As on Detainees for Senate
Judiciary Committee; Defense Questions/Answers on Detainees for Senate Judiciary
Committee (OlA#·9777); FW: 1PM Sept 27 LRM MBl 19· - DEFENSE Qs and As on
Detainees for Senate Judiciary Committee

Could you look at this. Please look for any international issue you think may be of
concern to Bruce and contact him if you spot one. Thanks.
Sent from my BlackBerry Wireless Handheld

(Control -9777)

FW: IPM Sept 27

A

lRM MB1l9 - - ...

Y ODAG objection to submitting the following draft Justice Department
comments (from OLC, OLP. and CIVl on the above to OMS? FYI:
a) OLC's comments appear in blue font, OLP's comments appear in black font, and the Civil
Division's comments appear in red font.
Please note that the comments on page 12, item'
13. take different approaches to the DoD text.
I have attached the comments as submitted.
b}

At DoD's request, OLC already provided its views directly to 000.

c)
I am running the final paragraph of the draft comments by CRM!CTS. in accordance with
DlP's wishes.
dl

I have attached the underlying documents.

e}
OMB had
afternoon.

req~ested

our comments by 1 p.m. and is prepared to go without us this·

«UCMJ Punitive Articles.doc» «PMO November 13, 2001.doc» «Geneva III.doc» «rI90
8.pdf» «SJC QFRs.pdf» «RE: lPM Sept 27 LRM MBLI9 - - DEFENSE OS and As on Detainees
for Senate Judic~ary Committee» «Defense Questions/Answers on Det'ainees for Senate
Judiciary Comrr.ittee (OLA'-9777»> «FW: IPM Sept 27 LRM MBL19 - - DEFENSE OS and As on
Detainees for Senate Judiciary Committee»
The Department of Justice has the following comments on the DOD Os and As on
Detainees for the Senate Judiciary Corr~ittee:
1
oo.)mn4~SRS

,
DOJ036496BS

with thlS:

and page
anslolers arE: not

he

nn.ln"\&::A07QC

unnecessary

•

Other comments:

,
DOJ036500BS

Page I of 3

Swartz, Bruce
From:
Sent:

Tuesday, September 27.20056:28 PM

To:

Subject: H36. Detainees ·000 Q&A (Control 9777)

-

CES has reviewed the responses to the QFRs you circulated and has the following comments on the portions
addressing CIPA:
The following text appears four limes in the QFR

9/27/2005

DOJ036501BS

~.

Page 2 of3

The following text appears on _

9/2712005

DOJ036502BS

Page 3 of3

/"

Ultimately, it may very well be that CIPA will not adequately protect the information that would need to be used to
hold these hearings. We do not opine on that issue, but merely seek to clarify the true nature and function of
CIPA.

•

9/27/2005

DOJ036503BS

U.S. Department of Jus('ice
Office of Legal Counsel

Washmgloll, DC 20530

August 24, 2009
Jameel Jaffer
Director. National Security Project
American Civil Liberties Union Foundation
125 Broad Street
New York, NY 10004
Dear Mr. Jaffer:
This responds to your Freedom oflnformation Act ("FOIA") request submitted to the
Department of Justice and the Department of Defense on April 22, 2008. The Criminal Division
referred to the Office of Legal Counsel ("OLC") for processing nine documents originating with
OLC thal are responsive to this request. Since two of these documents are duplicates. we are
only processing eight of the nine documents.
Five of the eight documents were identified and processed in connection with previous
FOIA requests submitted by your organization. Accordingly. as you have agreed, we are not
processing these five documents in connection with the present request. Two of the remaining
three documents are drafts of OLC memoranda, and we are withholding them in fuJI pursuant to
FOIA Exemptions One and Five. 5 U.S.c. § 552(b)(l), (5). We arc invoking Exemption Five
with respect to infomtation protected by the deliberative process privilege and Exemption Onewith respect to infonnation that is classified. Finally, we are relea-;ing the remailllng document,
which is enclosed.
Although I understand that your request is the subject of litigation. I am required by
statute and regulation to inform you that you have the right to file an administrative appeal.

Sincerely,

4//~~:~Paul P. Colborn
Special Counsel
Enclosure
cc:

Marcia Sowles (withollt enclosures)
Federal Programs Branch, Civil Division
Department of Justice

LEGAL RESTRICTIONS ON INTERROGATIONS ABROAD
Question: There have been press reports indicating that the Department of
Justice has taken the position that certain treaties and statutes may not apply
in Guantanamo or in other situations. How can that be?

Talking Points:
•

I cannot comment on specific legal advice that has been given to, requested by, or
provided for Executive branch departments. Institutional interests in ensuring that the
Executive branch can receive confidenliallegal advice from the Department of Justice
requires that that advice not be publicly disclosed.

•

The actllal words o/statutes altd treaties cOlltrol. We are all repulsed by the abuses of
Abu Ghraib, and our intuition recoils from treatment that is abusive or indecent. But
when it comes to applying the legal standards that govern interrogations, we must take
care to apply the laws that Congress has written according to the words that Congress has
enacted.

o

Detennining whether a particular statute or treaty applies to particular conduct is
often a matter of complex legal questions depending on specific language adopted
by Congress and "understandings" or "reservations" to treaties adopted by the
Senate.

•

o

•

These questions include whether a particular statute applies in a certain
territory outside the United State~ and whether it applies to particular
categories of persons and specific kinds of activities.

All of these limitations are especially important to bear in mind when it comes to
criminal statutes and criminal prosecutions, because criminal statutes are
generally construed strictly, in favor of the criminal defendant.

The Ulliform Code of MilitalJ! Justice gOI'ems everywhere. In addition, while a great of
discussion has been focused on international legal obligations, and in particular the
Geneva Conventions, it is important to remember that when it comes to the actions of

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U.S. military personnel, whether in Iraq during time of war or anywhere else in the world
at any time, the Uniform Code of Military Justice always applies, and it fully proscribes
any conduct toward prisoners of war or other detainees that could fairly be described as
torture, cmelty or maltreatment.

•

Otlter criminal provisions. Beyond the UCMJ, there are still other federal criminal
provisions that potentially may apply to interrogations conducted abroad, depending upon
the circumstances, including who is conducting the interrogations and where the conduct
takes place.

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Ouestion: What legal standards govern interrogations in Iraq?

Talking Points:
•

The Unifor-rn Code of Military Justice applies to members of the armed forces
eve..-ywhere, including in Iraq.
o

•

•

The UCMJ prohibits assault (art. 128), cruelty and maltreatment (art. 93),
disobedience to orders and dereliction of duty (art. 92), maiming (art. 124),
involuntary manslaughter (art. 119), and murder (art. 1l8).

The Military Extraterritorial Jurisdiction Act, or "MEJA," applies in certain
circumstances to others who are working \\'ith Ihe military. See CRM Talkers.

o

Under MEJA, those accompanying United States Armed Forces, former members
oCthe military no longer subject to the UCMJ, and members of the military who
act with others may be prosecuted for certain acts committed "outside the United
States" that would be a felony if committed within the "special maritime and
terrilorialjurisdiction of the United States." (18 U.s.c. § 3261(a)).

o

Such crimes could include assault (18 V.S.c. § 113), maiming (id. § 114), murder
(id. § 1(11), and manslaughter (id. § (112).

o

MEJA applies only "outside the United States," as defined by Congress in the
general criminal provisions of the U.S. Code. For these purposes, however,
Congress has defined the "United States" to include the "special maritime and
territorial jurisdiction of the United States," which may include certain military
bases or other areas in Iraq, at least with respect to certain conduct. Accordingly,
MEJA's application in Iraq will depend on the nature of particular areas and the
conduct at issue.

The Geneva Conventions apply in Iraq.
o

As a general rule, captured members of the Iraqi anned forces are entitled to the
protections of the Third Geneva Convention covering Prisoners of War.

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o

•

•

•

The Third Geneva Convention protects prisoners of wars against "grave
breaches," which include "wilful killing," "torture or inhuman treatment,"
or "wilfully causing great suffering or serious injury to body or health,"

•

Furthennore, under article 17 of the Third Geneva Convention, "[n]o
physical or mental torture, nor any other Conn of coercion, may be inflicted
on prisoners of war to secure from them infonnation of any kind whatever.
Prisoners of war who refuse to answer may not be threatened, insulted, or
exposed to unpleasant or disadvantageous treatment of any kind,"

The United States is an "occupying power" in lraq, and the Fourth Geneva
Convention covering Civilians thus also applies.
•

The Fourth Geneva Convention protects lraqis against essentially the same
"grave breaches" proscribed by the Third Convention,

•

The Fourth Geneva Convention further protects lraqis against "outrages
upon personal dignity" and "humiliating and degrading treatment."

The Geneva Conventions can be enforced through the federal War Crimes Act.
o

The War Crimes Act imposes criminal liability on any U.S. citizen or any member
of the U.S. anned forces who commits a "grave breach" of the Geneva
Conventions. (18 U.S.C. § 2441)

o

"Grave breaches" under the relevant treaties include "wilful killing," "torture or
inhuman treatment," and "wilfully causing great suffering or serious injury to
body or health."

o

Congress deliberately crafted the War Crimes Act to fulfill our treaty obligations
and thus limited it to situations where the treaties apply, and then only to grave
breaches of the Conventions.

addition, the federal torture statute makes it a crime for any person "outside the
United States ItoJ commit or attemptll to commit torture." (18 U.S.c. § 2340A).

[n

o

Torture is defined as "an act committed by a person acting under the color of law
specifically intended to inflict severe physical or mental pain or suffering (other

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than pain or suffering incidental to lawful sanctions) upon another person within
his custody or physical contra!." !d. § 2340(1).

•

o

Congress placed limiting definitions on the tenns of the statute. It defined "severe
mental pain and suffering" as "the prolonged mental hann caused or resulting
from" specified acts, including the "intentional infliction or threatened infliction
of severe physical pain or suffering" and the threat of imminent death, and the
actual or threatened administration of mind.altering substances. Jd. § 2340(2).

o

The torture statute would generally apply to acts of torture committed in Iraq. In
particular cases, however, there may be difficult legal questions about the scope of
its application.

•

While Congress made the torture statute apply "outside the United States,"
it also included a special definition of the "United States" that includes the
"special maritime and territorial jurisdiction of the United States," which,
in tum, may include certain military bases and other areas overseas, at
least for certain kinds of conduct. (18 U.S.c. § 7(3) & 7(9»

•

Because of the way Congress drafted the torture statute, therefore, its
application to certain areas in Iraq, particularly U.S. military bases, and to
particular conduct in those areas may vary depending on the circumstances
at issue.

The international Convention Against Torture is also relevant.
o

When the United States ratified the Convention Against Torture, the Presidenl and
the Senate defined United States obligations through an "understanding"
according to which "torture" under the treaty is interpreted to have essentially the
same meaning as in the federal torture statute.

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Question: What legal standards govern interrogations in Guantanamo and
Afghanistan?
Talking Points:
•

Quite apart from treaty obligations, the President early on alIDounced the policy that
detainees at Guanlanamo will be treated "humanely and, to the extent appropriate and
consistent with military necessity, in a manner consistent with the principles of the Third
Geneva Convention of 1949," and that "[t]he detainees will not be subjected to physical
or mental abuse or cruel treatment." White House Fact Sheet (Feb. 7,2002).

•

The Uniform Code of Military Justice ("UCMJ") applies to members of the armed
forces everywhere, including in Guantanamo and Afghanistan.
o

•

The UCMJ prohibits assault (art. 128), cruelty and maltreatment (art. 93),
disobedience to orders and dereliction of duty (art. 92), maiming (art. 124),
involuntary manslaughter (art. 119), and murder (art. 118).

The Military Extraterritorial Jurisdiction Act, or "MEJA," applies in certain
circumstances to others ',"'ho are working with the military in Afghanistan. See
CRM Talkers.
o

Under MEJA, those accompanying United States Anned Forces, fonner members
of the military no longer subject to the UCMJ, and members of the military who
act with others may be prosecuted for certain acts that would be a felony if
committed within the "special maritime and territorial jurisdiction of the United
States." (18 U.S.c. § 3261(a)).

o

Such crimes could include assault (18 U.S.c. § 113), maiming (id. § 114), murder
(id. § 1111), and manslaughter (id. § 1112).

o

MEJA applies only "outside the United States," as defined by Congress in the
general criminal provisions of the U.S. Code. The "United States" is defined in
those statutes to include the "special maritime and territorial jurisdiction of the
United States," and it is likely that a court would hold that such areas may include
Guantanamo and certain areas in Afghanistan, at least with respect to certain
conduct. Accordingly, MEJA may not apply in Guantanamo and its application in
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Afghanistan will depend on the nature ofpanicular areas and the specific conduct
at issue.

•

As a matter of law (distinct from tbe policy announced by the President), the
protections of the Geneva Conventions do not apply to al Qaeda and the Taliban.
o

The Geneva Conventions do not protect members of a] Qaeda because al Qaeda
"is not a state party to [the treaties]; it is a foreign terrorist group." White House
Fact Sheet (Feb. 7, 2002).

o

Although Afghanistan is a party to the Geneva Conventions, the Taliban detainees
are not entitled to the protections of the Third Geneva Convention covering
Prisoners of War because they do not satisfy the four conditions for status as
POWs under the treaty.

o

•

Those conditions are: to be commanded by a person responsible for his
subordinates, to have distinctive and recognizable identifying insignia, to
carry anns openly, and to act in accordance with the laws of war. Because
the Taliban failed to meet each of these standards, except the open
carrying of arms, Taliban detainees, whether held in Afghanistan or at
Guanlanamo, do not qualify for POW status under the Third Geneva
Convention.

•

The only court to address the issue has upheld the President's
detennination that members of the Taliban militia fail to qualify for POW
status under the Third Geneva Convention. See United States v. Lindh,
212 F. Supp. 2d 541, 556-558 (E.D. Va. 2002).

The Fourth Geneva Convention covering Civilians also covers "cases ofpanial or
total occupation of the territory of a High Contracting Party," as infonned by the
Hague Regulations. The United States is not an "occupying power" in
Afghanistan within the meaning oCthe Hague Regulations, because Afghanistan
has not been "actually placed under the authority oCthe hostile army." (Hague
Regulations, art. 42( I))

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•

The interrogation of al Qaeda and Taliban detainees could not violate the federal
War Crimes Act, because in relevant part tbe Act criminalizes only "grave
breaches" of the Geneva Conventions, and there can be no breaches of tbese treaties
where they do not apply.

•

The federal torture statute makes it a crime for any person "outside the United
States (to) commit or attempt(j to commit torture." (18 U.S.c. § 2340A).
o

Torture is defined as "an act committed by a person acting under the color of law,
specifically intended to inflict severe physical or mental pain or suffering (other
than pain or suffering incidental to lawful sanctions) upon another person within
his custody or physical control." Id. § 2340(1).

o

Congress placed limiting definitions on the terms of the statute. 1t defined "severe
mental pain and suffering" as "the prolonged mental hann caused or resulting
from" specified acts, including the "intentional infliction or threatened infliction
of severe physical pain or suffering" and the threat of imminent death, and the
actual or threatened administration of mind-altering substances. Jd. § 2340(2).

o

The torture statute would generally apply to acts of torture committed in
Afghanistan. In particular cases, however, there may be difficult legal questions
about the scope of its application.

•

While Congress made the torture statute apply "outside the United States,"
it also included a special definition of the "United States" that includes the
"special maritime and territorial jurisdiction of the United States," which,
in tum, may include certain military bases and other areas overseas, at
least for certain kinds of conduct. (18 U.S.c. § 7(3) & 7(9))

•

Because of the way Congress drafted the torture statute, therefore, its
application to certain areas in Afghanistan, particularly U.S. military
bases, and to particular conduct in those areas may vary depending on the
circumstances at issue.

•

In addition, it is likely that a court would hold that the torture statute does
not apply in Guantanamo, because the Guantanamo base may be
considered within the "special maritime and territorial jurisdiction of the
United States."

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•

Tbe inte.-national Convention Against To.-tu.-e is also .-elevant.
o

When the United Stales ratified the Convention Against Torture, the President and
the Senate defined United States obligations through an "understanding"
according to which "torture" under the treaty is interpreted to have essentially the
same meaning as in the federallorture statute.

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Ouestion: Does the U.S. Constitution restrain interrogation overseas?
Talking Points:
•

The two provisions of the Constitution that are potentially applicable, the Fifth and
Eighth Amendments, likely do not apply abroad and, in any event, may not provide
clear substantive constraints on interrogations that occur overseas.

•

The Fifth Amendment docs not apply to actions taken against aliens abroad.
o

•

The Supreme Court has held that the Fifth Amendment does not apply to actions
taken against aliens abroad. Johnson v. Eisel/trager, 339 U.S. 763, 784 (1950);
see United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (describing
Eisentrager as having "rejected the claim that aliens are entitled to Fifth
Amendment rights outside the sovereign territory of the United States").
•

Accordingly, Fifth Amendment protections do not apply to alien detainees
in lraq or Afghanistan.

•

Furthennore, the United States has argued in the Guantanamo cases
currently pending before the Supreme Court that Guantanamo is not part
of the "sovereign territory" of the U.S.; thus, the Fifth Amendment would
not apply to alien detainees at GuantananlO, as well.

In any event, even if the Fifth Amendment were to apply, the Due Process Clause of
the Fiftb Amendment proscribes only conduct tbat "shocks the conscience."
o

The substantive limits of the Due Process Clause have been held to protect against
"only the most egregious official conduct" that "shocks the conscience," which
likely would include only "conduct intended to injure in some way unjustifiable
by any government interest," based on "an understanding of traditional executive
behavior, of contemporary practice, and of the standards of blame generally
applied to them." County ofSacral1lento v. Lewis, 523 U.S. 833, 846-47 & n.8,
849 (1998).

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•

The protections of the Eighth Amendment, like those of the Fifth Amendment, likely
would be held not to apply to aliens detained abroad.

•

]n any event, even if it were applicable overseas, the Eighth Amendment only
forbids cruel and unusual punishment that is imposed after an adjudication of guilt,
and thus likely would not restrain the conduct of interrogations occurring prior to
such an adjudication.
o

The Eighth Amendment, which forbids cruel and unusual punishment, applies
only after a fonnal adjudication of guilt. See City ofRevere v. Massachusetts
Gell. Hasp., 463 U.S. 239, 244 (1983) ("Because there had been no fannal
adjudication of guilt against Kivlin at the time he required medical care, the
Eighth Amendment has no application.").

o

Accordingly, the Eighth Amendment would not apply to the interrogation of
detainees prior to any adjudication of guilt.

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Ouestion: Does the International Covenant on Civil and Political Rights
("ICCPR") restrain interrogation overseas?

Talking Points:
•

•

•

The ICCPR does not apply to conduct outside the United States.
o

Under the plain terms of the ICCPR, each contracting party undertakes to ensure
the rights enumerated in the treaty "10 all individuals within its territory and
subject to its jurisdiction." Art. 2(1) (emphases added).

o

This is the position the United States has taken in the Guantanamo cases, and it is
also the consistent position of the State Department.

The ICCPR is a buman rights treaty and does not apply in \\'artime or to tbe
conduct of war.
o

The laws of armed conflict constitute a separate body of international and
domestic law that the ICCPR was not intended to supplant.

o

This conclusion is based on application of the principle that specific provisions
trump general provisions.

o

This position has also been taken in the Guantanamo cases and approved by the
State Department.

Article 7 of the ICCPR declares that "In]o one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment."
o

With respect to "cruel, inhuman or degrading treatment or punishment," the
United States took a reservation, limiting the phrase to conduct that would violate
the U.S. Constitution.

o

The explanation of the Covenant sent to the Senate also said that "we interpret our
obligations under [the provision on torture] consistently with those we have
undertaken in [the Convention Against Torture]."
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Ouestion: What about Common Article 3 of the Geneva Conventions - does
it apply?
Talking Points:
•

Common article 3 of the Geneva Conventions proscribes cruel, humiliating and degrading
treatment of persons who arc not actively engaged in hostilities, but by its tenns it applies
only "[i]n the case of amlcd conflict nol of an international character occurring in the
territory of one of the High Contracting Parties."
o

The conflicts in Iraq and Afghanistan are of an international character and thus
common article 3 does not apply.

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Question: What about Article 16 of the Convention Against Torture - does it
apply?
Talking Points:
•

Article 16 of the Convention Against Torture proscribes "cruel, inhuman or degrading
treatment or punishment which do not amount to torture." Under a "reservation" to the
treaty, the United States defines this phrase to refer to "the cruel, unusual and inhumane
treatment prohibited by the Fifth, Eighth, andlor Fourteenth Amendments" to the U.S.
Constitution.

•

As a textual maUer, Article 16 might not apply in times of war or times of extreme
threat to national security.
o

The Convention clearly states that "[0]0 exceptional circumstances whatsoever,
whether a slate of war or a threat of war, internal political instability or any other
public emergency, may be invoked as a justification of torture," as proscribed in
Article 1 of the Convention. (Art. 2) No similar declaration applies to Article 16.

o

Under ordinary rules of construction, the absence of a parallel declaration
excluding "exceptional circumstances" for Article 16 suggests that "a state of war
or a threat of war, intema,l political instability or ... other public emergency"
might justify conduct that would othenvise be prohibited by Article 16.

•

By virtue of the U.S. reservation interpreting Article 16 to incorporate the substantive
protections of the Fifth and Eighth Amendments of the U.S. Constitution, Article 16
might not apply extraterritorially, since the Fifth Amendment has been held not to apply
to aliens abroad and the Eighth Amendment is also probably so limited in application.

•

Finally, it is important to point out that unlike the Article 1 prohibition against torture,
which Congress has enforced through the federal torture statute, Congress has not chosen
to enact any criminal statute to enforce Article 16.

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"

Question: When and how does the federal torture statute apply to
interrogations conducted overseas?
Talking Points:
•

Tbe federal torture statute makes it a crime for any person "outside tbe United
States Ito) commit or attemptlJ to commit torture." (18 U.S.c. § 2340A).

•

Congress placed limits on the definition of "torture" in the federal torture statute.

•

o

Torture is defined as "an act committed by a person acting under the color of law
specifically intended to inflict severe physical or mental pain or suffering (other
than pain or suffering incidental to lawful sanctions) upon another person within
his custody or physical controL" !d, § 2340(1).

o

Congress defined "severe mental pain and suffering" as "the prolonged mental
harm caused or resulting from" specified acts, including the "intentional infliction
or threatened infliction of severe physical pain or suffering" and the threat of
imminent death, and the actual or threatened administration of mind-altering
substances. [d, § 2340(2).

Congress also placed limits on the territorial scope of tbe torture statute by
including a special definition of what constitutes "outside the United States," and
these limits on the scope of the statute give rise to difficult legal questions about its
application to interrogations in Iraq, Afghanistan and Guantanamo.
o

While Congress made the torture statute apply "outside the United States," it also
included a special definition of the "United States" that includes the "special
maritime and territorial jurisdiction of the United States," which, in tum, may
include certain military bases and other areas overseas, at least for certain kinds of
conduct. (18 U.S,c. § 7(3) & 7(9))

o

Because of the way Congress drafted the torture statute, therefore, its application
to certain areas in Iraq and Afghanistan, particularly U.S. military bases, and to
particular conduct in those areas may vary depending on the circumstances at
Issue.
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