July 12, 2011

III. Individual Criminal Responsibility

The Illegality of the Underlying Abuses

The acts and abuses discussed in this report violate various provisions of US federal law, including the Crimes and Criminal Procedure Statute, Chapter 18 of the US Code (U.S.C.), which prohibits: torture (section 2340A(a)); assault (section 113); sexual abuse (sections 2241-2246); kidnapping (section 1201); homicide (sections 1111-1112 and section 2332); acts against rights (for example, sections 241-242, prohibiting conspiracies to deprive persons of their legal rights); war crimes (section 2441); conspiracy and solicitation of violent crimes (sections 371 and 373); and conspiracy to commit torture (section 2340A(c)).

The War Crimes Act of 1996 provides criminal punishment for whomever, inside or outside the United States, commits a war crime, if either the perpetrator or the victim is a member of the US Armed Forces or a national of the United States. A “war crime” is defined as any “grave breach” of the 1949 Geneva Conventions or acts that violate Common Article 3 of the four Geneva Conventions. “Grave breaches” include “willful killing, torture or inhuman treatment” of prisoners of war and of civilians qualified as “protected persons.” Common Article 3 prohibits murder, mutilation, cruel treatment and torture, and “outrages upon personal dignity, in particular humiliating and degrading treatment.” [165]

The 2006 Military Commissions Act revised the War Crimes Act and limited the definition of war crimes, with retroactive effect. As a result, humiliating and degrading treatment of detainees in US counterterrorism operations following the September 11 attacks can no longer be charged as war crimes under the statute. However, this does not change liability for murder and torture.

The Anti-Torture Act (18 U.S.C. section 2340A) provides criminal penalties for acts of torture—including attempts to commit torture and conspiracy to commit an act of torture—occurring outside the territorial jurisdiction of the United States regardless of the citizenship of the perpetrator or victim. [166]

The Anti-Torture Act defines torture 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.”[167]

Some of the crimes listed above are subject to a statute of limitations. Under federal law, charges for the crimes of assault, kidnapping, and acts against rights must ordinarily be brought within five years of the date of the commission of the offense. [168] Where evidence of a crime is located in another country, which may be the case for some or all of the possible crimes described above, the limitations period may be extended for an additional three years, meaning eight years from the time the crime was committed. [169]

For the crime of torture, the statute of limitations is at least eight years, [170] and arguably does not exist at all. [171]

Homicide, sexual abuse, and war crimes resulting in death are not subject to a limitation period.

Conspiracy : In addition to the substantive offenses listed above, there is sufficient evidence to open a criminal investigation into whether senior Bush administration officials engaged in a criminal conspiracy to commit offenses such as torture and war crimes. This conspiracy would include, at a minimum, the top officials listed in this report as well as the lawyers who drafted legal memoranda seeking to justify torture.

A conspiracy to commit a federal crime may fall under the general federal conspiracy statute (18 U.S.C. section 371), [172] as well as specific statutes for particular substantive offenses, the most relevant of which would be conspiracy to commit torture (18 U.S.C. section 2340A(c)). [173]

The essential elements required to bring a charge of conspiracy under 18 U.S.C. section 371 include:

(i) An agreement of two or more persons (ii) to knowingly and voluntarily commit a federal crime, with (iii) knowledge of the essential objectives of the conspiracy, (iv) interdependence amongst the conspirators, and (v) an “overt act” committed in furtherance of the conspiracy.[174]

Among the “overt acts” in furtherance of the conspiracy, in addition to the mistreatment itself, would be the preparation and adoption of the various legal memos, Executive Orders, and formal and informal approvals. [175]

Specific intent is an essential element of criminal conspiracy. [176] It is necessary to demonstrate that the conspirator intended to agree to commit elements of the underlying offense. [177] While some officials might argue that authorization of their conduct by the Justice Department's Office of Legal Counsel negates the specific intent requirement, that argument would almost certainly fail if prosecutors could demonstrate that the OLC’s own work was itself an act within the conspiracy or if, as explained below, those officials were instrumental in pressing for legal cover from the OLC or influenced the drafting of the memoranda that they now claim protects them . In addition, it is not necessary for conspirators to have known or intended for the conspiracy to violate federal law per se. As the Supreme Court has said:

The general conspiracy statute, 18 U.S.C. s.371 offers no textual support for the proposition that to be guilty of conspiracy a defendant in effect must have known that his conduct violated federal law. The statute makes it unlawful simply to “conspire . . . to commit any offense against the United States.” A natural reading of these words would be that since one can violate a criminal statute simply by engaging in the forbidden conduct, a conspiracy to commit that offense is nothing more than an agreement to engage in the prohibited conduct.[178]

While conspiracy is subject to a five-year statute of limitations, it is a continuing crime that does not end until the last co-conspirator commits the last overt act of the conspiracy. [179]

At a minimum, President Bush’s reauthorization of the CIA detention program in July 2007 [180] would be considered an overt act, pushing the statute of limitations to July 2012. There is no immunity from prosecution in US courts for the acts described in this report. [181]

Forms of Liability

Senior US officials did not physically commit acts of abuse. However, civilian superiors and military commanders can be held criminally liable as principals if they order, induce, instigate, aid, or abet in the commission of a crime. This is a principle recognized both in US[182] and international law.[183]

In addition, the doctrine of “command responsibility” or “superior responsibility” holds that individuals who are in civilian or military authority may under certain circumstances be criminally liable for the crimes of those under their command or authority. Three elements are needed to establish such liability:

1)       There must be a superior-subordinate relationship;

2)      The superior must have known or had reason to know that the subordinate was about to commit a crime or had committed a crime; and

3)      The superior failed to take necessary and reasonable measures to prevent the crime or to punish the perpetrator.

The US armed forces have long recognized the principle of command responsibility. [184] The first and most significant US case involving “command responsibility” was that of Gen. Tomoyuki Yamashita, commander of the Japanese forces in the Philippines in World War II, whose troops committed brutal atrocities against the civilian population and prisoners of war. General Yamashita, who had lost almost all command, control, and communications over his troops, was nevertheless convicted by the International Military Tribunal in Tokyo based on the doctrine of command responsibility. The US Supreme Court affirmed the decision, holding that Yamashita was, by virtue of his position as commander of the Japanese forces in the Philippines, under an “affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population.”[185]

Waterboarding is Torture

“Waterboarding” is a relatively recent name for a form of water torture that dates at least to the Spanish Inquisition, when it was called the tormenta de toca.[186] It has been used by some of the cruelest dictatorships in modern times, including the Khmer Rouge in Cambodia and became known as the “submarino” when it was practiced by the military dictatorships in Latin America in the 1970s and 1980s.[187] While often referred to as “simulated drowning,” experts have taken issue with this label as failing to convey the genuine harm done to the victim who actually is drowning.[188] As approved for CIA use, it was designed to produce “the perception of ‘suffocation and incipient panic.’”[189] In April 2006, more than 100 US law professors stated in a letter to Attorney General Alberto Gonzalez that waterboarding is torture, and is a criminal felony punishable under the US federal criminal code.[190] As director of the US Defense Intelligence Agency, Lt. Gen. Michael D. Maples in 2008 gave testimony that, in his view, waterboarding violated the laws of war.[191] Waterboarding has been denounced as a torture method by the US State Department,[192] the UN High Commissioner for Human Rights,[193] the Committee against Torture,[194] the UN special rapporteur on torture,[195] and the UN special rapporteur on protecting human rights while countering terrorism,[196] among others.

Courts in the US and other tribunals have repeatedly found that waterboarding, or variations of it, constitute torture and is a war crime:[197]

  • Following revelations by a congressional inquiry that US forces were engaging in water torture known as “the water cure” in its occupation of the Philippines in the early 1900s, several US officers were court-martialed, and one—Maj. Edwin Glenn—was suspended from command for a month and fined for authorizing the practice.[198]
  • Several US military commissions in the World War II Pacific Theater found that variants of waterboarding constituted torture, including in United States v. Sawada, the prosecution of the Japanese officers responsible for the torture of the Doolittle raiders.[199]
  • The International Military Tribunal for the Far East, convened by US Gen. Douglas MacArthur in 1946, condemned and found that the widespread use of waterboarding variants by the Japanese military constituted torture. It issued severe sentences to both those who administered and those who ordered it.[200]
  • In 1968, a front page article in The Washington Post featuring a picture of a US soldier supervising the administration of water torture on a North Vietnamese soldier reportedly led to a court-martial.[201]
  • In a class action lawsuit by over 10,000 Filipino plaintiffs against the Ferdinand Marcos government in the Philippines, a US federal district court in 1995 found that water torture was among the various human rights violations committed.[202]
  • In 1983, a federal court found that water torture was criminal conduct under US law, when Sheriff James Parker of San Jacinto County, Texas, and three deputies were convicted by a jury for engaging in the practice. Each received substantial prison sentences. On appeal, the judge held that the sheriff had allowed law enforcement to fall into “the hands of a bunch of thugs. The operation down there would embarrass the dictator of a country.”[203]
  • President Obama and Attorney General Eric Holder have both stated that waterboarding is torture.[204]
  • Several Bush administration officials, such as Director of National Intelligence Mike McConnell and Homeland Security Department Secretary Tom Ridge, have also publicly recognized that waterboarding is torture.[205]


Interrogation Techniques that Secretary Rumsfeld Authorized Constitute Torture and Ill-Treatment

In December 2002, Defense Secretary Rumsfeld authorized a number of interrogation and detention techniques, including stress positions, hooding during questioning, deprivation of light and auditory stimuli, and use of “detainees’ individual phobias (such as fear of dogs) to induce stress.”[206]

These methods violate the protections afforded to all persons in custody—whether combatants or civilians—under the laws of armed conflict and can amount to torture or inhuman treatment. For detainees who should be considered POWs or were entitled to a presumption of POW status, mistreatment by these methods would be a grave breach of the Geneva Conventions. Serious violations of the laws of war committed with criminal intent, including grave breaches of the Geneva Conventions, are war crimes.

The Army Field Manual on intelligence interrogation in effect when Rumsfeld authorized the various interrogation methods, FM 34-52, cites as an example of torture “forcing an individual to stand, sit, or kneel in abnormal positions for prolonged periods of time.” Mental torture includes “abnormal sleep deprivation,” which may or may not have resulted from the authorization of light control and loud music. The field manual also prohibits forms of coercion including threats. Perhaps most importantly, the field manual instructs soldiers, when in doubt, to ask themselves: “If your contemplated actions were perpetrated by the enemy against US POWs, you would believe such actions violate international or US law.”[207]

The UN Committee Against Torture has considered techniques such as these to constitute torture.[208] It specifically called on the US to “rescind any interrogation technique, including methods involving sexual humiliation, ‘waterboarding,’ ‘short shackling,’ and using dogs to induce fear, that constitute torture or cruel, inhuman or degrading treatment or punishment, in all places of detention under its de facto effective control, in order to comply with its obligations under the Convention.”[209]

In his 2004 report to the UN General Assembly, the UN special rapporteur on torture specified that such interrogation techniques violated the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:

The Special Rapporteur has recently received information on certain methods that have been condoned and used to secure information from suspected terrorists. They notably include holding detainees in painful and/or stressful positions, depriving them of sleep and light for prolonged periods, exposing them to extremes of heat, cold, noise and light, hooding, depriving them of clothing, stripping detainees naked and threatening them with dogs. The jurisprudence of both international and regional human rights mechanisms is unanimous in stating that such methods violate the prohibition of torture and ill-treatment.[210]

The US government has itself denounced as torture these same methods when practiced by other countries, including Burma (being forced to squat or remain in uncomfortable periods for long periods of time), Egypt (stripping and blindfolding of prisoners), Eritrea (tying of hands and feet for extended periods of time), Iran (sleep deprivation and suspension for long periods in contorted positions), Iraq (food and water deprivation), Jordan (sleep deprivation and solitary confinement), Pakistan (prolonged isolation and denial of food or sleep), Saudi Arabia (sleep deprivation), Tunisia (food and sleep deprivation), and Turkey (prolonged standing, isolation).[211] The State Department human rights reports also criticized Egypt for stripping and blindfolding detainees and pouring cold water on them; Tunisia, Iran, and Libya for using sleep deprivation; Libya for threatening chained detainees with dogs; and North Korea for forcing detainees to stand up and sit down to the point of collapse.[212]

Of Rumsfeld’s methods, “fear of dogs … to induce stress” deserves special attention. Threatening a prisoner with torture to make him talk is considered to be a form of torture or cruel, inhuman or degrading treatment.[213] Threatening a prisoner with a ferocious guard dog is no different as a matter of law from pointing a gun at a prisoner’s head. And, of course, many of the pictures from Abu Ghraib show unmuzzled dogs being used to intimidate detainees, sometimes while they are cowering, naked. As General Fay noted in his report on Abu Ghraib “When dogs are used to threaten and terrify detainees, there is a clear violation of applicable laws and regulations.”[214]

CIA Secret Detention Program Constituted Enforced Disappearances and Ill-Treatment

The CIA’s secret detention program, entailing prolonged incommunicado detention without trial, violated international legal prohibitions against enforced disappearances. Disappearances violate or threaten to violate a range of rules of international human rights and humanitarian law, including arbitrary deprivation of liberty, torture, and the right to life.

US law places limits on the treatment of detained terrorist suspects. The US Supreme Court ruled in 2004 that the Authorization for Use of Military Force, which Congress passed after the September 11, 2001 attacks and authorizes presidential action against al Qaeda and allied forces, gave the president power to detain enemy belligerents. However, Justice Sandra Day O’Connor, speaking for the plurality of the court, said, “Certainly, we agree that indefinite detention for the purposes of interrogation is not authorized.”[215]

US foreign relations law has long recognized that “prolonged detention without charges and trial,” and “causing the disappearance of persons by the abduction and clandestine detention of those persons” constitute “gross violations of internationally recognized human rights.”[216]

The prolonged, unacknowledged, incommunicado detention of persons in secret CIA facilities constitutes enforced disappearances under international law. The International Convention for the Protection of All Persons from Enforced Disappearance (“Convention against Enforced Disappearance”) defines an enforced disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”[217]

The Convention against Enforced Disappearance states that “No one shall be held in secret detention”[218] The UN Declaration on the Protection of All Persons from Enforced Disappearances, which was adopted by the UN General Assembly in 1992, provides that all detainees shall be held in an officially recognized place of detention, and that accurate information on detainees and their place of detention shall be made promptly available to family members, counsel, and any others having a legitimate interest in the information.[219]

The UN General Assembly and UN Commission on Human Rights have both declared that “detention in secret places” can “facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment” and that it can “in itself constitute a form of such treatment.”[220] The UN Working Group on Enforced or Involuntary Disappearances has decried “’extraordinary rendition’ [that] has been used to transport terrorist suspects to other states for aggressive interrogation. Information continues to reach the Working Group on the existence of secret detention centres where terrorist suspects are held in complete isolation from the outside world. In [this situation], people disappear. As is well documented, disappearance is often a precursor to torture and even to extrajudicial execution.”[221]

With respect to the laws of armed conflict, the 25th International Conference of the Red Cross in 1986 condemned “any act leading to the forced or involuntary disappearance of individuals or groups of individuals.”[222] The 27th International Conference of the Red Cross and Red Crescent, in its Plan of Action for 2000-2003, requested that all parties to an armed conflict take effective measures to ensure that “strict orders are given to prevent all serious violations of international humanitarian law, including … enforced disappearances.”[223]

A confidential report of the International Committee of the Red Cross (ICRC) that was leaked to media in 2010 stated that the secret detention regime used by the CIA “itself constitutes a form of ill-treatment.”[224] The ICRC found that the circumstances in which the detainees were held by the CIA “amounted to … enforced disappearance.”[225]

OLC Legal Guidance Does Not Immunize Officials for Torture and Disappearances

The string of legal opinions and memoranda by Bush administration lawyers on detainee issues since September 11, 2001, appear to have been intended to shield US officials from potential liability. These opinions were largely written by the Department of Justice’s Office of Legal Counsel. Pursuant to DOJ regulations, the OLC is tasked with “preparing the formal opinions of the Attorney General; rendering informal opinions and legal advice to the various agencies of the Government; and assisting the Attorney General in the performance of his functions as legal adviser to the President…”[226]

In the January 25, 2002 draft memorandum for President Bush, White House counsel Alberto Gonzales advised against application of the Geneva Conventions to al Qaeda and Taliban detainees, stating that a “positive” reason for denying Geneva Convention protections to these detainees was to “[s]ubstantially reduce[] the threat of domestic criminal prosecution under the War Crimes Act.” 

Gonzales then explained to the president that "it is difficult to predict the motives of prosecutors and independent counsels who may in future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]. Your determination [that the Geneva Conventions do not apply] would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution."[227]

Bush and others have asserted that they approved the detention and interrogation techniques described above only after legal review by Department of Justice attorneys. For instance, in a television interview after he left office, Bush explained his approval of waterboarding: “We had legal opinions that enabled us to do it.”[228]

International law does not provide for “mistake of law” or “government authority” defenses to the crime of torture. [229]

Under US law, an accused cannot generally invoke an “advice-of-counsel” defense. [230] As Judge Richard Posner has noted, “ If unreasonable advice of counsel could automatically excuse criminal behavior, criminals would have a straight and sure path to immunity.” [231]

At the same time, due process concerns would seem to bar conviction when a defendant engages in conduct in reasonable reliance on an official interpretation of the law. The Mo del Penal Code provides that belief that one’s conduct is lawful is a defense when the defendant “acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in … an official interpretation of the public officer or body charged by law with responsibility for the interpretation ... of the law defining the offense.” [232]

There is thus an exception to the mistake of law doctrine “in circumstances where the mistake results from the defendant's reasonable reliance upon an official—but mistaken or later overruled—statement of the law. [T]he doctrine may in some circumstances protect a defendant's reasonable reliance on official advisory opinions, such as an Attorney General's opinion. [233]

Under section 1004(a) of the Detainee Treatment Act of 2005, written after the Abu Ghraib revelations and the release of the torture memos, officials prosecuted as a result of detention and interrogation operations may raise as a defense that they: “did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.”[234]

Under these statutes and precedents, then, the question of whether reliance on OLC guidance was “reasonable” and in “good faith” will depend on the facts, including the nature of the acts and of course whether potential defendants were involved in the preparation of the guidance.[235]

As the American Journal of International Law editorialized:

[T]hese memoranda cannot in themselves insulate or immunize persons engaging or complicit in torture or war crimes from international or domestic criminal responsibility for their conduct. It is well settled that advice of counsel—the "My lawyer said it was OK" defense—cannot serve as an excuse for violating the law, especially in cases where legal advice is deliberately sought and given for the very purpose of providing such an excuse. [236]

In the context of practices such as waterboarding, prolonged stress positions and long-term incommunicado detention, it stretches credulity to argue that a person of ordinary sense and understanding would not know the practices were illegal.

In addition, there is now substantial evidence that the initiative for abusive interrogation techniques came largely from civilian leaders, and that politically appointed administration lawyers created legal justifications in the face of opposition from career government legal officers. As political commentator Anthony Lewis has written, “[t]he memos read like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison. Avoiding prosecution is literally a theme of the memoranda.”[237] Journalist Jane Mayer concluded in her book The Dark Side that Bush and Cheney “turned the Justice Department Office of Legal Counsel into a political instrument.”[238] One unnamed former administration official, described as a “conservative lawyer,” told Mayer: “They didn’t care if the opinions would withstand scrutiny. They just wanted to check a box saying, ‘OLC says it’s legal.’ They wanted lawyers who would tell them that whatever they wanted to do was okay.”[239] Indeed, after two OLC heads—Jack Goldsmith and then Dan Levin—had given Bush and Cheney difficulty over the torture issue, Steven Bradbury in 2005 was given the OLC job “on probation” until he completed his opinion that gave waterboarding legal approval. Reportedly, the following day, Bush sent his name forward for formal nomination.[240]

Shortly before leaving office, Cheney acknowledged that, “[w]e spent a great deal of time and effort getting legal advice, legal opinion out of the Office of Legal Counsel, which is where you go for those kinds of opinions, from the Department of Justice as to where the red lines were out there in terms of this you can do, this you can't do.”[241]

Moreover, the record now shows that even before administration officials requested OLC opinions on interrogation techniques, the CIA approached the chief of the Department of Justice Criminal Division, Michael Chertoff, to request an “advance declination” of prosecution for acts associated with the interrogation of detainees—a binding notice from the criminal division of the Justice Department that it would not prosecute officials involved in interrogations. Chertoff refused to provide such a declination.[242]

The Justice Department’s Office of Professional Responsibility (OPR), which investigated the conduct of Assistant Attorney General Jay Bybee and Deputy Assistant Attorney General John Yoo in drafting the August 2002 memoranda, found that Yoo “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.” Bybee, it said, acted in “reckless disregard” of his obligations to provide independent legal analysis.[243]

Yoo had briefed White House counsel Gonzales several times on the August 1, 2002 memorandum during its drafting, as well as Attorney General Ashcroft, Cheney’s counsel David Addington, Defense Department counsel William Haynes, CIA counsel John Rizzo, and NSC legal advisor John Bellinger.[244] Bellinger, who became the State Department's legal adviser in 2007, told OPR that he concluded that Yoo was “under pretty significant pressure” to determine that the interrogation program was legal.[245] According to the OPR report, Justice Department attorney Patrick Philbin said that when he raised concerns about a section of the memo claiming sweeping presidential power to decide what is legal, Yoo told him, “They want it in there,” later explaining that the CIA may have suggested it, a claim that then-acting CIA General Counsel John Rizzo denied.[246]

Jack Goldsmith, who headed OLC from 2003 to 2004, told OLC that Yoo’s August 2002 memo was “riddled with error” and a “one sided effort to eliminate any hurdles posed by the torture law.”[247]

The same pressure may have been exerted in 2005 for the re-approval memos issued by Steven Bradbury, when head of the OLC Bellinger told OPR that Bradbury's conclusions were “so contrary to the commonly held understanding of the treaty [Convention against Torture] that ... the memorandum had been ‘written backwards’ to accommodate a desired result.”[248] Daniel Levin, who as acting head of the OLC drafted the memos that replaced Yoo's, reported that the White House “pressed” him to reiterate the office's legal support for the CIA's interrogation methods.[249] Deputy Attorney General James Comey wrote in a 2005 email that Attorney General Gonzales told him he had been pressured by Cheney to produce opinions that would rebut congressional concerns about the CIA program:

At a meeting last Friday with Pat [Philbin], the AG [Gonzales], and Steve Bradbury [the new head of the OLC, under whom Philbin served].… I expressed my concern, saying the analysis was flawed and that I had grave reservations about the second opinion. The AG [Gonzales] explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP’s request and the AG had promised they would be ready early this week.
… Patrick had previously reported that Steve [Bradbury] was getting constant similar pressure from Harriet Miers [White House Counsel] and David Addington to produce the opinions.[250]

Duty to Investigate and Provide Redress

Under international law, states are obligated to investigate credible allegations of war crimes and serious violations of human rights committed by their nationals and members of their armed forces, or over which they have jurisdiction, and appropriately prosecute those responsible.[251]

War crimes are serious violations of international humanitarian law committed willfully—that is, deliberately or recklessly—and give rise to individual criminal responsibility.[252] Individuals may be held criminally responsible for directly committing war crimes or for war crimes committed pursuant to their orders.[253] They may also be held criminally liable for attempting to commit war crimes, as well as planning, instigating, assisting, facilitating, and aiding or abetting them.[254]

The US also has a duty to investigate serious violations of international human rights law and punish the perpetrators.[255] As a state party to the International Covenant on Civil and Political Rights (ICCPR), the US has an obligation to ensure that any person whose rights are violated “shall have an effective remedy” when the violation has been committed by government officials or agents. Those seeking a remedy shall have this right determined by competent judicial, administrative, or legislative authorities. And when granted, these remedies shall be enforced by competent authorities.[256]

Civilian leaders and commanders may also be prosecuted for war crimes and violations of international human rights law as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.[257]

However, no US federal court, including the Supreme Court, has granted judicial remedy to persons alleging torture or other ill-treatment, including rendition to torture, in post-September 11 cases. Both the Bush and the Obama administrations have argued successfully that such cases should be dismissed under the state secrets privilege in US law. The state secrets privilege allows the head of an executive department to refuse to produce evidence in a court case on the grounds that the evidence is secret information that would harm national security or foreign relations interests if disclosed. [258] In the past, the state secrets privilege has been recognized by courts as allowing the executive to argue that distinct pieces of evidence should be barred from disclosure, while permitting a case to proceed. [259] However, courts examining allegations of Bush administration abuse have relied upon a far broader interpretation of the privilege, not to bar specific evidence, but instead to require a dismissal at the very beginning stages of a case. [260] In other cases alleging torture or other ill-treatment, government attorneys have successfully argued that claims are preempted under federal law or trigger various forms of immunity. [261] The courts, in accepting these various legal defenses, including the state secrets privilege, have refused to even examine, let alone rule on, the merits of victims’ claims.

Investigation and referral to prosecution are required for all serious violations of human rights law, but monetary and other forms of compensation can also be provided. [262] The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (“Convention against Torture”), to which the US is also party, requires that a victim of torture “obtains redress and has an enforceable right to fair and adequate compensation,” including rehabilitation, and compensation to dependents when a victim is deceased. [263]

One US court has suggested compensation as a way to partially mitigate some of the abuse alleged in this report. [264] In suggesting the US government look into other options to remedy plaintiffs’ claims that they had been tortured after rendition by the United States, the 9th Circuit Court of Appeals noted that other governments such as the United Kingdom have made similar commitments. [265] It also noted the authority of Congress to investigate alleged wrongdoing and restrain excesses of the executive branch. [266]

The Four Key Leaders

Based on the information presented above, Human Rights Watch believes that there is sufficient basis for the US government to order a broad criminal investigation into alleged war crimes and human rights violations committed in connection with the torture and ill-treatment of detainees, the CIA secret detention program, and the rendition of detainees to torture. Such an investigation would necessarily focus on alleged criminal conduct by the following four senior officials—George W. Bush, Dick Cheney, Donald Rumsfeld, and George Tenet—among others. Human Rights Watch presents evidence now publicly available, but expresses no opinion about the ultimate guilt or innocence of these or other officials.

President George W. Bush

President Bush was commander-in-chief of the US armed forces, and the senior executive officer of the US government, exercising full control over all of its executive agencies, including the CIA. Bush often chaired NSC meetings and was briefed extensively and routinely on all national security matters.

Bush approved coercive interrogation methods, including waterboarding, ordered the CIA secret detention program, and approved the program of unlawful renditions. In addition, even after learning that serious abuses were taking place, Bush never intervened to stop them or seek to prosecute those responsible.

Bush approved waterboarding and other illegal interrogation methods

Bush acknowledged on several occasions that he approved waterboarding of detainees, including Khalid Sheikh Mohammed and Abu Zubaydah.

The first acknowledgment came on April 11, 2008, in an interview with Martha Raddatz of ABC News:

Raddatz: "ABC News reported this week that your senior national security officials all got together and approved -- including Vice President Cheney -- all got together and approved enhanced interrogation methods, including waterboarding, for detainees." …. Bush: "Yes." Raddatz: "You have no problem with that?"
Bush: "No. I mean, as a matter of fact, I told the country we did that. And I also told them [national security officials] it was legal. We had legal opinions that enabled us to do it. And, no, I didn't have any problem at all trying to find out what Khalid Sheikh Mohammed knew.
…..And, yes, I'm aware our national security team met on this issue. And I approved. I don't know what's new about that; I'm not so sure what's so startling about that."[267]

In his memoirs, Bush wrote that when the CIA proposed techniques including waterboarding against Abu Zubaydah,

“I took a look at the list of techniques. There were two that I felt went too far, even if they were legal. I directed the CIA not to use them. Another technique was waterboarding, a process of simulated drowning. No doubt the procedure was tough […] I would have preferred that we get the information another way. But the choice between security and values was real. Had I not authorized waterboarding on senior al Qaeda leaders, I would have had to accept a greater risk I was unwilling to take.

“I approved the use of the interrogation techniques.”[268]

He also acknowledged in his memoirs that he approved the waterboarding of Khalid Sheikh Mohammed:

George Tenet asked if he had permission to use enhanced interrogation techniques, including waterboarding, on Khalid Sheikh Mohammed.…
“Damn right,” I said.[269]

On May 19, 2009, Cheney corroborated this account to Bob Schieffer of CBS’s Face the Nation:

SCHIEFFER: How much did President Bush know specifically about the methods that were being used? We know that you—and you have said—that you approved this...
CHENEY: Right.
SCHIEFFER: …. somewhere down the line. Did President Bush know everything you knew?
CHENEY: I certainly, yes, have every reason to believe he knew—he knew a great deal about the program. He basically authorized it. I mean, this was a presidential-level decision. And the decision went to the president. He signed off on it.[270]

In March 2008, Bush vetoed legislation containing a provision requiring that CIA interrogations comply with the US Army field manual on interrogations, which barred certain interrogation techniques, including waterboarding. Bush explained that the legislation would “take away one of the most valuable tools in the war on terror—the CIA program to detain and question key terrorist leaders and operatives.” “Limiting the CIA's interrogation methods to those in the Army Field Manual,” he said, would be dangerous because the manual is publicly available and easily accessible.”[271]

Bush ordered CIA secret detention program and approved renditions program

On September 17, 2001, President Bush reportedly signed a memorandum, apparently still classified, authorizing the CIA to kill, capture, detain, and interrogate al Qaeda members and others thought to be involved in the September 11 attacks. It is not known whether Bush approved a separate finding for secret detentions or whether this was covered in the September 17 memo.[272]

In his memoir, Bush explained that the decision was taken to move Abu Zubaydah to “a secure location in another country where the Agency [CIA] would have total control over his environment.”[273] In his speech of September 6, 2006, acknowledging the CIA detention program, Bush recognized that suspects had been held “secretly” “outside the United States.”[274]

 As described above, Bush was present at the NSC meeting on September 26, 2001, when CIA Director Tenet described the CIA renditions program, asking, according to Bob Woodward, At what point are we going to feel comfortable talking about these things?”[275]

Bush knew or should have known that many rendered detainees would likely face torture and other ill-treatment, and took no steps to stop the program or punish those responsible. In November 2003, just days after Canadian national Maher Arar was released from Syrian custody, Bush declared that the government of Syria had left “a legacy of torture, oppression, misery, and ruin.”[276]

Vice President Dick Cheney

Vice President Cheney played a key role in the formulation of detainee policy. Cheney “loomed over everything,” one former CIA official told Jane Mayer.[277] He was a member of the NSC “Principals Committee,” which approved interrogation policies. Together with his chief counsel, David Addington, he was the principal political force pressing OLC lawyers to justify the use of coerced interrogation methods.[278]

Cheney has spoken publicly about the entire approval process for CIA interrogation, including his own role, for instance telling the Washington Times:

I signed off on it; others did, as well, too. I wasn’t the ultimate authority, obviously. As the Vice President, I don’t run anything. But I was in the loop. I thought that it was absolutely the right thing to do.[279]

Cheney approved CIA renditions program

As described above, Cheney was among the main White House officials briefed on CIA abduction and rendition operations, and he discussed these operations with the president. Cheney, along with National Security Advisor Condoleezza Rice, also chaired NSC meetings at which CIA rendition operations were discussed. He advised the president to generally authorize CIA renditions operations and he sought formal authorization from the president, approving particular operations. Vice President Cheney knew or should have known that renditions would lead to torture.

Cheney approved waterboarding and other illegal interrogation methods

As one of the key chairs of NSC meetings, Cheney authorized the CIA detention program. In a July 2003 meeting of NSC Principals, Cheney and other principals “reaffirmed that the CIA program was lawful and reflected administration policy.”[280] This included waterboarding.

In October 2006, Cheney defended the use of waterboarding as a "no-brainer," agreeing with a radio host’s assertion that “a dunk in water” may yield valuable intelligence from terrorism suspects.[281] In August 2009, Cheney stated:

I knew about the waterboarding. Not specifically in any one particular case, but as a general policy that we had approved.[282] 

Defense Secretary Donald Rumsfeld

Defense Secretary Rumsfeld created the conditions for members of the US armed forces to commit torture and other war crimes by approving interrogation techniques that violated the Geneva Conventions and the Convention against Torture.

Rumsfeld made numerous statements indicating that the US was not bound to treat detainees in accordance with international law. While not in itself a criminal offense, it helped create the conditions in the armed forces that facilitated such abuses. It also made clear that he was unlikely to take action against military personnel that did not conform to international legal requirements.

Rumsfeld labeled the first detainees to arrive at Guantanamo from Afghanistan on January 11, 2002, as “unlawful combatants,” denying them possible status as POWs. “Unlawful combatants do not have any rights under the Geneva Convention [sic],” he said,[283] ignoring that the conventions provide explicit protections to all persons detained in an international armed conflict, including those not entitled to POW status. He rejected formal US legal compliance with international law by saying that the government would “for the most part, treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate.”[284] After the Abu Ghraib scandal broke, he told an interviewer in May 2004 that the Geneva Conventions “did not apply precisely” in Iraq but were “basic rules” for handling prisoners.[285]

Rumsfeld’s attitude toward the laws of armed conflict created a climate in which respect for legal norms by US troops may have been loosened. In May 2004, for instance, a member of the 377th Military Police Company told The New York Times that the labeling of prisoners in Afghanistan as “enemy combatants” not subject to the Geneva Conventions contributed to their abuse. “We were pretty much told that they were nobodies, that they were just enemy combatants,” he said. “I think that giving them the distinction of soldier would have changed our attitudes toward them.”[286]

Similarly, speaking of the decision to apply the Geneva Conventions only where this was “appropriate” and “consistent with military necessity,” State Department legal advisor William H. Taft, IV, said this

unhinged those responsible for the treatment of the detainees in Guantanamo from the legal guidelines for interrogation of detainees reflected in the Conventions and embodied in the Army field manual for decades. Set adrift in uncharted waters and under pressure from their leaders to develop information on the plans and practices of al Qaeda, it was predictable that those managing the interrogation would eventually go too far.[287]

Rumsfeld approved coercive interrogation methods, including those that amounted to torture. As described below, he also closely monitored the abusive interrogation of Mohammad al-Qahtani in 2002 and perhaps that of John Walker Lindh, the so-called “American Taliban,” in late 2001.

From the earliest days of the war in Afghanistan, Rumsfeld was on notice through briefings, ICRC reports, reports by human rights organizations, and media accounts that members of the US armed forces were conducting coercive interrogations, including torture. However, there is no evidence that he ever exerted his authority to stop the torture and ill-treatment of detainees or take action against those responsible.

Rumsfeld approved coercive interrogation methods that violated international law

Rumsfeld was intimately involved in the minutiae of interrogation techniques for detainees at Guantanamo Bay, Cuba. As described above, on December 2, 2002, he authorized a list of techniques for interrogation of prisoners in Guantanamo that was an unprecedented expansion of US military doctrine.[288] These included: “stress positions (like standing) for a maximum of four hours”; “isolation ….up to 30 days; hooding during questioning”; “Deprivation of light and auditory stimuli”; “Removal of all comfort items (including religious items)”; “Forced grooming (shaving of facial hair, etc)”; “Removal of clothing”; and “Using detainees’ individual phobias (such as fear of dogs) to induce stress.”[289]

As described above, depending on how they are used, these methods likely violate the prohibition on torture or inhuman treatment of prisoners under the laws of armed conflict, regardless of whether the prisoners are entitled to POW status, and those responsible for their use could be liable for war crimes.

After objections from the Navy’s general counsel, Rumsfeld temporarily rescinded his blanket approval of the coercive techniques listed above on January 15, 2003. Rather than discard the techniques entirely, however, he ordered that he personally approve any use of the harsher categories of techniques, thus suggesting that he continued to view them as legitimate. He stated in a memo that: “Should you determine that particular techniques in either of these categories are warranted in an individual case, you should forward that request to me. Such a request should include a thorough justification for the use of such techniques.”[290]

Rumsfeld issued a final interrogation policy for Guantanamo on April 16, 2003. These guidelines, while more restrictive than the December 2002 rules, still allowed techniques that go beyond what the Geneva Conventions permit for POWs.[291] Indeed, Rumsfeld’s memo itself states in relation to several techniques—including isolation and removing privileges from detainees—that “those nations that believe detainees are subject to POW protections” may find that technique to violate those protections.[292]

In 2004, the Schlesinger report found that “the augmented techniques [approved by Rumsfeld] for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.”[293]

As described above, coercive interrogation methods first approved by Rumsfeld were used in Guantanamo, Iraq, and Afghanistan. The Schlesinger report found that in Afghanistan, “techniques included removal of clothing, isolating people for long periods of time, use of stress positions, exploiting fear of dogs, and sleep and light deprivation. Interrogators in Iraq, already familiar with some of these ideas, implemented them even prior to any policy guidance from CJTF-7 [the command in Iraq].”[294] At Abu Ghraib, of course, the techniques that Rumsfeld himself put into play, such as use of dogs, figured prominently in the war crimes committed against detainees.

The SASC concluded that “Secretary of Defense Donald Rumsfeld's authorization of interrogation techniques at Guantanamo Bay was a direct cause of detainee abuse there.”[295]

Rumsfeld monitored the coercive interrogation of Mohammad al-Qahtani and perhaps that of John Walker Lindh

In late 2002, Rumsfeld took direct interest in the interrogation of Saudi detainee Mohammad al-Qahtani, suspected of being the intended “20th hijacker” in the September 11 attacks had immigration officers not turned him away at Orlando airport. The December 2, 2002 memo approving the use of stress positions, isolation, hooding, and the use of dogs was directly connected to the interrogation of al-Qahtani,[296] whom Rumsfeld deemed to be “a very bad person, a person who clearly had information about attacks against the United States.”[297]

Even before the December 2, 2002 memo, Guantanamo commander, Maj. Gen. Geoffrey Miller, received a “VOCO,” or a vocal command, on November 23, 2002, to allow the aggressive interrogation of al-Qahtani to begin. While no one in the chain of command can now seem to remember who issued the VOCO, it was apparently assumed by officers in the chain of command that Rumsfeld issued it.[298] And even before the VOCO, when an FBI agent objected to the treatment of al-Qahtani, he was told that “the Secretary” had approved it.[299]

According to Department of Army Inspector General Lt. Gen. Randall M. Schmidt, Rumsfeld spoke weekly with General Miller about the progress of the interrogation, which employed weeks of sleep deprivation, stress positions, and sexual humiliation.[300]

Al-Qahtani’s interrogation log[301] reveals that he was subjected to a regime of physical and mental mistreatment from November 2002 to early January 2003, which intensified after Rumsfeld’s order.[302] For six weeks, al-Qahtani was intentionally deprived of sleep, forced into painful stress positions, threatened with snarling dogs, forced to perform tricks on a dog leash, and subjected to forced exercises, forced standing, and sexual and other physical humiliation. Interrogators made him stand nude, told him to bark like a dog and growl, and hung pictures of scantily clad women around his neck. After refusing water, al-Qahtani was forced to accept an intravenous drip for hydration and, on several occasions, was denied trips to a latrine causing him to urinate on himself at least twice. On one occasion was forced to undergo an enema.[303]

According to Newsweek, a senior FBI counterterrorism official wrote to the Defense Department complaining of “highly aggressive interrogation techniques" at Guantanamo and singling out the treatment of al-Qahtani in September and October 2002—even before the log begins—saying a dog was used "in an aggressive manner to intimidate Detainee #63.” The FBI letter said al-Qahtani had been “subjected to intense isolation for over three months” and “was evidencing behavior consistent with extreme psychological trauma (talking to non existent people, reporting hearing voices, crouching in a cell covered with a sheet for hours on end).”[304]

Al-Qahtani’s interrogation log reveals that he was suffering serious medical conditions, including irregular blood pressure and heartbeat. At one point in the interrogation, being subjected to extended sleep deprivation, his heart rate dropped to a dangerously low level of 35 beats per minute.[305] Department of Army Inspector General Lt. Gen. Randall M. Schmidt, who had gone to Guantanamo and seen al-Qahtani, just as he was “coming out of this thing,” said that “he looks like hell.… He has got black coals for eyes.”[306]

According to Gitanjali Gutierrez, an attorney with the Center for Constitutional Rights who represented al-Qahtani after his torture, his weight dropped from approximately 160 to just over 100 pounds in about four months.[307]

David Becker, a senior intelligence officer at Guantanamo involved in crafting the interrogation plan for al-Qahtani, said that Guantanamo commander Gen. Michael Dunlavey, until his departure in December 2002, was directly supervising the military intelligence team carrying out al-Qahtani’s interrogation and received regular telephone calls from Rumsfeld’s deputy, Paul Wolfowitz, about it and other interrogations.[308]

The SASC Report also refers to regular calls from Wolfowitz to Dunlavey’s successor, General Miller, and states that Wolfowitz’s office occasionally called about particular detainees.[309]

General Schmidt, who along with Brig. Gen. John Furlow investigated detainee abuse at Guantanamo,[310] told the army inspector general in 2005 that it was clear to him that there was a direct communication link between Rumsfeld and his office in Washington to General Dunlavey and later General Miller, and from there directly to interrogators.[311] Schmidt placed Miller squarely between Rumsfeld and the interrogators, describing Miller as the person to be the translator between the “SECDEF’s [Rumsfeld’s] guidance because he communicated with the Secretary of Defense, the COCOM [commander of SOUTHCOM] and daily with his—with his interrogator/detention folks.”[312] Schmidt said Miller “was executing what he thought was the Secretary’s intent and only he would have been the right guy at that level to know into the action—the application of the technique, and only he would have been the one who should know how it was being applied.[313]

Schmidt also portrayed the al-Qahtani interrogation as wholly contingent on Rumsfeld’s approval: “The special interrogation plan … ended because the SECDEF [Rumsfeld] rescinded his guidance from the policy level and then it shot right down to the JTF, [to] the interrogation level.”[314]

Schmidt continued:

When the Secretary of Defense is personally involved in the interrogation of one person, and the entire General Counsel system of all the Departments of the Military and the Office of General Counsel and Secretary of Defense—and the Secretary of Defense is personally being briefed on this …
And I just find it hard to believe, as does anybody, that when the Secretary of Defense has that kind of interest to where he’s talking weekly with the JTF Commander and the COCOM, but the JTF Commander too, personally—and General Dunlavey said he didn’t even go to the SOUTHCOM, he went directly to the Office of [Secretary of] Defense. He dealt with him. He was the Secretary of Defense’s person personally on this JTF; and he almost did nothing with … SOUTHCOM. He almost ignored them. When General Miller came in, he understood the chain of command and he went through SOUTHCOM to the Secretary of Defense but there was still a direct connection. [315]

Then-SOUTHCOM commander Gen. James T. Hill also confirmed that Rumsfeld and his office regularly spoke with, and were being directly briefed by, General Miller on the al-Qahtani interrogation.[316] General Hill also stated that Miller often observed the interrogation sessions. He also stated that Rumsfeld himself called him in at some point in mid-January 2003 about the al-Qahtani interrogation. According to Hill, Rumsfeld asked about the status of the interrogation, concerned because of the impending actions of Adm. Alberto Mora, described above. (This was a few days before the interrogation was stopped because of ongoing controversy.) Hill said that he would call Miller, and then call Rumsfeld back:

So I called General Miller. We discussed the ongoing interrogations. General Miller said to me I’ve personally been looking at it…. We think we’re right on the verge of making a breakthrough. We ought to continue it.
I called the Secretary [Rumsfeld] back and said, my best recommendation to you is what the people on the ground say that there is valuable intelligence. We’re just about to get there. We’re not doing anything wrong. We’re taking care of business. We got him under hospital—you know, doctor’s care. He’s gaining weight. He’s not under any duress. We think we’re going to get this. The Secretary said fine.[317]

In fact, the techniques being used on al-Qahtani were illegal, and Rumsfeld had been warned that they were illegal. By this point in January 2003, Admiral Mora and other military lawyers had alerted Rumsfeld that the techniques he had authorized in his December 2, 2002 order, which were at that time being used on al-Qahtani, could trigger criminal liability.[318]

Ultimately, the convening authority for the Guantanamo military commissions, the top Defense Department official overseeing prosecutions at Guantanamo, military judge Susan J. Crawford, who had served as an Army general counsel and inspector general of the Department of Defense, reached the conclusion that al-Qahtani had been tortured, and could not be prosecuted because of the mistreatment he suffered. “We tortured Qahtani,” Crawford told Bob Woodward: “His treatment met the legal definition of torture. And that’s why I did not refer the case [for prosecution].”[319]

Even before his authorization of coercive interrogation methods and the al-Qahtani case, Rumsfeld appears to have provided oversight or was at least aware of the coercive interrogation of John Walker Lindh, the so-called “American Taliban,” who was captured in Afghanistan in 2001. Photos presented by Lindh’s lawyers show Lindh after his capture on November 25, 2001, stripped naked, blindfolded, with plastic cuffs on his wrists, and bound to a stretcher with duct tape.[320] According to a motion filed in federal court, Lindh was left for days on this gurney in an unheated and unlit metal shipping container from which he was only removed during interrogations.

For over three weeks after his capture, Lindh still had a bullet in his thigh, which was said by a US physician to be “seeping and malodorous.”[321] He was also said to be suffering from hypothermia, malnourishment, and exposure.[322] According to the motion, “A Navy physician … recounted that the lead military interrogator in charge of Mr. Lindh’s initial questioning told the physician ‘that sleep deprivation, cold and hunger might be employed’ during Mr. Lindh’s interrogations.”

According to documents examined by the Los Angeles Times, Rumsfeld’s legal counsel instructed military intelligence officers to “take the gloves off” when interrogating Lindh.[323] In the early stages of Lindh’s interrogation, his responses were reportedly cabled to Washington hourly.[324] Rumsfeld argued, in a January 2002 memo to Department of Defense General Counsel, Jim Haynes, that Lindh should be sent to Guantanamo instead of facing a civilian trial. At one point Rumsfeld remarked, “I don’t really care what happens to Walker at this stage.”[325]

Rumsfeld knew or should have known that US forces in Afghanistan and Iraq were committing torture and other coercive interrogation methods and failed to act to stop the mistreatment

Rumsfeld appears to be responsible as a matter of command responsibility for the widespread use of torture and ill-treatment by US military personnel in Afghanistan and Iraq. He was personally notified beginning in early 2002 about the mistreatment of detainees by Secretary of State Colin Powell,[326] US Administrator in Iraq L. Paul Bremer,[327] Afghan government officials,[328] and journalists.[329] The ICRC repeatedly warned him during the same period,[330] as did the Army provost marshal, Maj. Gen. Donald Ryder,[331] and retired Col. Stuart A. Herrington in internal reports.[332] In addition, there was substantial public information about abuses against detainees, including images of John Walker Lindh being held naked and bound by duct tape to a stretcher in Afghanistan, leading articles in the Washington Post and the New York Times[333] and reports from Human Rights Watch and other nongovernmental organizations. The sheer number and widespread nature of abuses against detainees across three countries should have in any event put Rumsfeld on notice through internal channels.[334]

Yet Rumsfeld failed to intervene to prevent further commission of crimes. Even as he was being publicly and personally warned about abuses, he apparently never issued specific orders or guidelines to forbid coercive methods of interrogation, other than withdrawing his blanket approval for certain methods at Guantanamo in January 2003. Indeed, as described above, in mid-2003 pressure on interrogators in Iraq to use more aggressive methods of questioning detainees was actually increased. Had Rumsfeld exerted his authority as the civilian official in charge of the armed forces and used his position and authority to bring the mistreatment of prisoners to a stop, many violations of international law that US forces committed could have been avoided.[335]

CIA Director George Tenet

From late 2001 and until his resignation in 2004, CIA Director George Tenet established and oversaw the CIA’s secret detention program. Under his direction, the CIA abducted and rendered persons to countries known to torture detainees; tortured and ill-treated detainees; and forcibly disappeared detainees in secret locations, often with no acknowledgement of their detention and with no oversight of their treatment.

As Tenet reportedly told a closed-door international meeting of top intelligence officials on March 10, 2002, in New Zealand:

Gentlemen, we are at war.… As for the CIA, I can tell you this. There is nothing we won’t do, nothing we won’t try, and no country we won’t deal with to achieve our goals, to stop the enemy. The shackles, my friends, have to be taken off.[336]

Tenet authorized and oversaw CIA abductions and renditions to torture

Tenet directly oversaw the CIA rendition program, which led to the torture and ill-treatment of detainees abroad. During NSC meetings in 2001, Tenet presented options for covert CIA rendition operations, implemented orders to use renditions, and briefed the president and NSC on renditions operations. Tenet knew or should have known that detainees transferred to foreign countries faced a high risk of torture. The Middle Eastern countries to which detainees were rendered—Egypt, Syria, Pakistan, Jordan, Saudi Arabia, and Morocco—were notorious for their use of torture.

Tenet designed and oversaw the CIA renditions program. According to an account by Bob Woodward, at an NSC meeting on September 26, 2001:

Tenet turned to some of the secret operations. The CIA had been able to work some renditions abroad—capturing or snatching suspected terrorists in other countries. Various foreign intelligence services were either cooperating or were being bought off to take suspected terrorists into custody.[337]

Michael Scheuer, head of the CIA’s bin Laden desk, who ran the detainee rendition program, said he “never a saw a set of operations that was more closely scrutinized by the director of central intelligence, the National Security Council and the Congressional intelligence committees.” [338] According to Scheuer, each individual operation, “I think … went to either the Director of Central Intelligence or to the Assistant Director of Central Intelligence. So basically the number one and two men in the intelligence community are the ones who signed off.”[339]

Newsweek reported a clash between the FBI and the CIA during the interrogation in Afghanistan of suspect Ibn al-Shaikh al-Libi:

FBI officials brought their plea to retain control over al-Libi’s interrogation up to FBI Director Robert Mueller. The CIA station chief in Afghanistan, meanwhile, appealed to the agency’s hawkish counterterrorism chief, Cofer Black. He in turn called CIA Director George Tenet (emphasis added), who went to the White House. Al-Libi was handed over to the CIA. “They duct-taped his mouth, cinched him up and sent him to Cairo” for more-fearsome Egyptian interrogations, says the ex-FBI official. “At the airport the CIA case officer goes up to him and says, ‘You’re going to Cairo, you know. Before you get there I’m going to find your mother and I’m going to f--- her.’ So we lost that fight.” (A CIA official said he had no comment.)[340]

With regard to al-Libi, Tenet wrote in his memoirs, however, that:

We believed that al-Libi was withholding critical threat information at the time, so we transferred him to a third country for further debriefing. Allegations were made that we did so knowing that he would be tortured, but this is false.[341]

Tenet knew or should have known that the rendered detainees would be tortured

Citing congressional sources, Newsweek reported that at a classified briefing for senators not long after the September 11 attacks, Tenet was asked whether the US was planning to seek the transfer of suspected al Qaeda detainees from governments known for their brutality. Newsweek reported that “Tenet suggested it might be better sometimes for such suspects to remain in the hands of foreign authorities, who might be able to use more aggressive interrogation methods.”[342]

At the March 2002 New Zealand meeting described above, Tenet’s head of covert operations, James Pavitt, reportedly said, “We’re going to be working with intelligence agencies that are utterly unhesitant in what they will do to get captives to talk.”[343]

The rendition of terror suspects following the September 11 attacks was first reported in The Washington Post in December 2002, which described transfers to countries including Syria, Uzbekistan, Pakistan, Egypt, Jordan, Saudi Arabia, and Morocco, where they are believed to have been tortured or otherwise ill-treated. One official was quoted as saying, “We don’t kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.”[344] After that, the New Yorker, theBBC, and CBS’s 60 Minutes described an organized US program of renditions to Egypt of suspects captured in places such as Afghanistan, Albania, Croatia, and Sweden, resulting in many cases of torture and enforced disappearance.[345]

Tenet was undoubtedly aware of the torture involved in these renditions even before the early media reports. The Middle Eastern countries to which detainees were transferred—Egypt, Syria, Pakistan, Jordan, Saudi Arabia, and Morocco—are known to use torture.[346] The US State Department had the following to say in its 2003 reports about torture in Egypt and Syria, two of the major rendition destinations. In Egypt:

[T]here were numerous, credible reports that security forces tortured and mistreated detainees.… Principal methods of torture reportedly employed … included victims being: stripped and blindfolded; suspended from a ceiling or doorframe with feet just touching the floor; beaten with fists, whips, metal rods, or other objects; subjected to electrical shocks; and doused with cold water.[347]

In Syria:

[T]here was credible evidence that security forces continued to use torture.… [Syrian groups and ex-detainees] reported that torture methods included administering electrical shocks; pulling out fingernails; forcing objects into the rectum; beating, sometimes while the victim is suspended from the ceiling; hyper extending the spine; bending the detainees into the frame of a wheel and whipping exposed body parts; and using a chair that bends backwards to asphyxiate the victim or fracture the victim’s spine.[348]

CIA officer Michael Scheuer confirmed that “we told them [higher level and non-CIA staff] — again and again and again” that the detainees might be mistreated.

Former CIA counterterrorism official Vincent Cannistraro has remarked: “You would have to be deaf, dumb and blind to believe that the Syrians were not going to use torture, even if they were making claims to the contrary.”[349]

Tenet oversaw the CIA’s secret detention program

Under Tenet, the CIA organized a program in which terrorism suspects were detained in undisclosed locations, with no access to the ICRC, no oversight of their treatment, no notification to their families, and in many cases, no acknowledgement that they were even being held. As described above, prolonged incommunicado detention in an unreported location constitutes an enforced disappearance and may violate many basic human rights, including the right to be free from torture and other ill-treatment.

Tenet authorized and oversaw the CIA’s torture and otherwise coercive interrogation of detainees

The CIA interrogation program included acts that amounted to torture, ill-treatment, sexual abuse, among other offenses. As described above, Tenet proposed and sought approvals from the president on a general level, and the NSC on a specific level, for an interrogation program for “high-level” detainees.

In particular, under Tenet, the CIA waterboarded at least three detainees.

According to The Washington Post:

The interrogation methods were approved by Justice Department and National Security Council lawyers in 2002, briefed to key congressional leaders and required the authorization of CIA Director George J. Tenet for use, [emphasis added] according to intelligence officials and other government officials with knowledge of the secret decision-making process.[350]

According to one “deeply involved former Agency officer” quoted by Jane Mayer, “[e]very single plan was drawn up by interrogators, and then submitted for approval to the highest possible level, meaning the director of the CIA. Any change in the plan–even if an extra day of a certain treatment was added–was signed off on by the Director.”[351]

Tenet participated in a NSC meeting in July 2003 in which the NSC Principals “reaffirmed that the CIA program was lawful and reflected administration policy.”[352] This included waterboarding.

Other Officials

National Security Advisor Condoleezza Rice, Secretary of State Colin Powell, and Attorney General John Ashcroft were also members of the “Principals Committee,” which discussed and approved specific details of how the CIA would interrogate high-value terrorism suspects. Their roles should therefore also be investigated.

A criminal investigation into the systematic use of torture and ill-treatment after September 11, 2001, should include an examination of the roles played by the lawyers who crafted the legal “justifications” for torture, including Alberto Gonzales (counsel to the president and later attorney general) Jay Bybee (head of the OLC), John Rizzo (acting CIA general counsel), David Addington (counsel to the vice president), William J. Haynes, II, (Department of Defense general counsel), and John Yoo (deputy assistant attorney general in the OLC).       

[165]Federal Law 18 U.S.C. sec. 2441.

[166] Federal Law 18 U.S.C. sec. 2340A(a). Section 2340(3) defines the “United States” as including “all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501(2) of title 49.” The USA Patriot Act broadened the scope of section 7, extending jurisdiction under that section to foreign diplomatic, military, and other facilities. The Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 amends section 2340(3) to define the “United States” as “the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States” (H.R.4200, 108th Cong. sec. 1089 (2004)).

[167] Federal Law 18 U.S.C. sec. 2340A(a). Federal law 18 U.S.C. sec. 2340(2) further 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;…”

[168] Federal Law 18 U.S.C. sec.3282.

[169] Federal Law 18 U.S.C. sec 3292.

[170] Federal Law 18 U.S. C. sec. 3286 adopted in 2001 as part of the Patriot Act extended to eight years the statute of limitations for certain terrorism offenses listed in 18 U.S. C. sec. 2332(g)(5)(b), including torture.

[171] Federal Law 18 U.S.C. sec. 3286(b) states that there is no limitation for any offense listed in 18 U.S.C. section 2332(g)(5)(b) “if the commission of such an offense resulted in, or created a foreseeable risk of, death or serious bodily injury to another person.” Torture is among the offenses listed in section 2332(g)(5)(b) and it arguably meets the foreseeable risk of death or serious bodily injury threshold.

[172] “If two or more persons conspire either to commit any offense against the United States … 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.” (18 U.S.C. sec. 371)

[173]See United States v. Belfast II, United States Court of Appeals for the Eleventh Circuit, No. 09-10461, July 15, 2010, http://caselaw.findlaw.com/us-11th-circuit/1531578.html (accessed June 12, 2011).

[174]United States v. Rogers,  United States Court of Appeals for the 10th Circuit, No. 10-6070, 2010, 556 F.3d 1130 (10th Cir. 2010). An “overt act” is any statement or act that is knowingly said or done by one or more of the conspirators in an effort to accomplish the conspiracy. See Joseph F. McSorley, A Portable Guide to Federal Conspiracy Law – Tactics and Strategies for Criminal and Civil Cases, 2nd Ed. (New York: American Bar Association, 2003), p. 184.

[175] The “overt act” does not have to be a crime itself and all conspirators need not join or participate in the commission of the “overt act” in order to be charged under the federal conspiracy statute. United States v. Merida, United States Court of Appeals for the 5th Circuit, June 27, 1985, 761 F.2d 12, 15 (1st Cir. 1985).

[176]United States v. Wallace, United States Court of Appeals for the 2nd Circuit, No. 1578, June 19, 1996, 85 F. 3d 1063 (2d Cir. 1996).

[177]State of Connecticut v. Wells, Appellate Court of Connecticut, No. 26671, April 3, 2007, http://caselaw.findlaw.com/ct-court-of-appeals/1034918.html (accessed June 14, 2011).

[178]United States v. Feola, United States Supreme Court, No. 73-1123, March 19, 1975, 420 U.S. 671, 688 (1975).

[179] In Fiswick v. United States, the court stated, “The state of limitations, unless suspended, runs from the last overt act during the existence of the conspiracy. The overt acts averred and proved may thus mark the duration, as well as the scope of the conspiracy.” Fiswick v. United States, United States Supreme Court, No. 51, December 9, 1946, 329 U.S. 211, 216 (1946).

[180] Executive Order 13440, “Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency,” signed July 20, 2007, http://edocket.access.gpo.gov/2007/pdf/07-3656.pdf (accessed June 15, 2011). See alsoKaren DeYoung, “Bush Approves New CIA Methods, Interrogations Of Detainees To Resume,” Washington Post, July 21, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/07/20/AR2007072001264.html (accessed June 15 2011) ; Mark Mazzetti, “Rules Lay Out C.I.A.’s Tactics in Questioning,” New York Times, July 21, 2007, http://www.nytimes.com/2007/07/21/washington/21intel.html (accessed June 15, 2011).

[181]The OLC in 2000 concluded that “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions” (emphasis added), affirming a 1973 opinion to that effect. The OLC opinion said that “[r]ecognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President's term is over or he is otherwise removed from office by resignation or impeachment.” Memorandum from the Office of Legal Counsel for the attorney general,” A Sitting President's Amenability to Indictment and Criminal Prosecution,” Oct. 16, 2000, http://www.justice.gov/olc/sitting_president.htm (accessed June 24, 2011) sec. II (B)3. Indeed, in 2000, the OLC concluded, that despite any double-jeopardy concerns, “[t]he Constitution permits a former President to be indicted and tried for the same offenses for which he was impeached by the House of Representatives and acquitted by the Senate.” Memorandum from the Office of Legal Counsel for the attorney general, “Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He Was Impeached by the House and Acquitted by the Senate,” August 18, 2000, http://www.justice.gov/olc/expresident.htm (accessed June 24, 2011). By contrast, a former president “is entitled to absolute immunity from damages liability predicated on his official acts.” Nixon v. Fitzgerald, United States Supreme Court, No-79-1738, June 24, 1982, 457 U.S. 731, 749 (1982).

[182] See for example, Federal Law 18 U.S.C. sec. 2 (“(a) Whoever commits an offense against the United States or aids, 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.”).

[183] See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted June 8, 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978, http://www1.umn.edu/humanrts/instree/y5pagc.htm (accessed June 26, 2011), art. 86(2), which is recognized as customary laws of war. ICRC, Customary International Humanitarian Law, rule 152. The Rome Statute of the International Criminal Court, art. 25 states:

a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.

Rome Statute of the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002.

[184] US Army Field Manual 27-10, section 501 states: “In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.” Department of the Army, Field Manual 27-10: The Law of Land Warfare, July 1956, http://www.aschq.army.mil/gc/files/fm27-10.pdf (accessed June 26, 2011).

[185]In Re Yamashita, United States Supreme Court, February 4, 1946,327 US 1, 16 (1946). For a fuller discussion of command responsibility, see Human Rights Watch, Getting Away with Torture?Command Responsibility for the US Abuse of Detainees, April 23, 2005, http://www.hrw.org/en/reports/2005/04/23/getting-away-torture-0, Annex.

[186]Toca is a kind of cloth, such that would be placed over the victim’s nose and mouth.

[187] The Istanbul Protocol: The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a prominent set of international guidelines for documentation of torture and its consequences, states:

Near asphyxiation by suffocation is an increasingly common method of torture. It usually leaves no marks and recuperation is rapid. This method of torture was so widely used in Latin America, that its Spanish name "submarino" became part of the human rights vocabulary. Normal respiration might be prevented through methods such as covering the head with plastic bag, closure of the mouth and the nose, pressure or ligature around the neck, or forced aspiration of dusts, cement, hot peppers, etc. This is also known as "dry submarino." Various complications might develop such as petechiae of the skin, nosebleeds, bleeding from the ears, congestion of the face, infections in the mouth and acute and chronic respiratory problems …Forcible immersion of the head into water, often contaminated with urine, feces, vomit, or other impurities, may result in near drowning or drowning. Aspiration of the water into the lungs may lead to pneumonia. This form of torture is also called “wet submarino.” (United Nations: Geneva, 1999), E.01.XIV.1.

[188] According to Malcolm Nance, a former master instructor and chief of training at the US Navy's Survival, Evasion, Resistance and Escape school, who has himself been waterboarded as part of the training, “There is nothing simulated about waterboarding at all…. It's controlled drowning. [Y]ou can feel every drop. Every drop. You start to panic. And as you panic, you start gasping, and as you gasp, your gag reflex is overridden by water. And then you start to choke, and then you start to drown more. Because the water doesn't stop until the interrogator wants to ask you a question. And then for that second, the water will continue, and you'll get a second to puke and spit up everything that you have, and then you'll have an opportunity to determine whether you're willing to continue with the process.” Malcolm Nance, chief of training, US Navy SERE, interview by Washington Media Associates, Torturing Democracy Project, November 15, 2007, http://www.gwu.edu/~nsarchiv/torturingdemocracy/interviews/malcolm_nance.html (accessed June 15, 2011).

[189] The second August 1, 2002, Bybee memo describes the officially sanctioned procedure of waterboarding as follows: “The individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, airflow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of ‘suffocation and incipient panic.’” Memorandum from Jay S. Bybee, assistant attorney general, to John Rizzo, acting general counsel of the CIA, regarding “Interrogation of al Qaeda Operative,” August 1, 2001, http://www.fas.org/irp/agency/doj/olc/zubaydah.pdf (accessed June 25, 2011) (“Second Bybee Memo”), pp. 3-4.

[190] See Richard Abel, et al. “Open Letter to Attorney General Alberto Gonzales, April 5, 2006, posted by Human Rights Watch, http://www.hrw.org/en/news/2006/04/05/open-letter-attorney-general-alberto-gonzales.

[191] Testimony of Lt. Gen. Michael Maples, director of the Defense Intelligence Agency, Before the US Senate Armed Services Committee, “Annual Threat Assessment,” February 27, 2008, http://www.dni.gov/testimonies/20080227_transcript.pdf (accessed June 15, 2011), p. 31.

[192] U.S Department of State, Bureau of Democracy, Human Rights, and Labor, “Country Reports on Human Rights Practices—2004, Tunisia,” February 28, 2005, http://www.state.gov/g/drl/rls/hrrpt/2004/41733.htm (accessed June 15, 2011), stating “The forms of torture included: electric shock; confinement to tiny, unlit cells; submersion of the head in water.”

[193] Louise Arbour, UN High Commissioner for Human Rights, stated that she "would have no problems with describing [waterboarding] as falling under the prohibition of torture.”“U.N. says waterboarding should be prosecuted as torture,” Reuters, February 8, 2008, http://uk.reuters.com/article/idUKN0852061620080208 (accessed June 15, 2011).

[194] UN Committee Against Torture, “Consideration of Reports Submitted by State Parties Under Article 19 of the Convention, Conclusions and recommendations of the Committee Against Torture, United States of America,”  U.N. Doc CAT/C/USE/CO/2, July 25, 2006, http://www.unhchr.ch/tbs/doc.nsf/0/e2d4f5b2dccc0a4cc12571ee00290ce0/$FILE/G0643225.pdf (accessed June 26, 2011), para. 24.

[195] Then-UN Special Rapporteur on Torture Manfred Nowak stated that "[t]his is absolutely unacceptable under international human rights law ... [the] [t]ime has come that the government will actually acknowledge that they did something wrong and not continue trying to justify what is unjustifiable.” Martin Hodgson, “US censured for waterboarding,” Guardian, February 7, 2008, http://www.guardian.co.uk/world/2008/feb/07/humanrights.usa (accessed June 15, 2011).; UN Blasts White House on Waterboarding, Associated Press, February 6, 2008, http://www.truth-out.org/article/un-blasts-white-house-waterboarding (accessed January 12, 2011). An earlier special rapporteur on torture had condemned the practice in the mid-1980s, long pre-dating the Bush administration use of waterboarding. See UN Commission on Human Rights, “Torture and other cruel, inhuman or degrading treatment or punishment, Report by the Special Rapporteur, Mr. P. Kooijmans, appointed pursuant to Commission on Human Rights resolution 1985/33,” E/CN.4/1986/15, February 19, 1986, http://ap.ohchr.org/documents/E/CHR/report/E-CN_4-1986-15.pdf (accessed June 26, 2011), para. 119 (describing “suffocation by near-drowning in water (sous-marin) and/or excrement.”

[196] UN Human Rights Council, “Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, Addendum, Mission to the United States of America,” A/HRC/6/17/Add.3, November 22, 2007, http://www.unhcr.org/refworld/type,MISSION,,USA,4757c5f52,0.html (accessed June 26, 2011), p. 16.

[197] Evan Wallach, “Drop by Drop: Forgetting the History of Water Torture in US Courts,” Columbia Journal of Transnational Law, vol. 45, iss.2 (2007), p.472.

[198] Ibid., pp. 494-501. See also Eric Weiner, “Waterboarding: A Tortured History,” NPR News., November 3, 2007, http://www.npr.org/templates/story/story.php?storyId=15886834 (accessed June 17, 2011).

[199] Wallach, “Drop By Drop,” pp. 478-489.

[200] Ibid., pp. 478–494.

[201] Weiner, “Waterboarding: A Tortured History,” http://www.npr.org/templates/story/story.php?storyId=15886834; Mark Tran,“ Cheney endorses simulated drowning,” Guardian, October 27, 2006,http://www.guardian.co.uk/world/2006/oct/27/usa.guantanamo (accessed June 15, 2011); “Torture and the Constitution,” Editorial, Washington Post, December 11, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/12/10/AR2005121000934.html (accessed June 15, 2011); Scott Shane, “Remarks on Torture May Force New Administration’s Hand,” New York Times, January 16, 2009, http://www.nytimes.com/2009/01/17/us/politics/17detain.html (accessed June 15, 2011). But see Walter Pincus, “Waterboarding Historically Controversial,” Washington Post, October 5, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/10/04/AR2006100402005.html (accessed June 15, 2011), in which Pincus states that this photograph “reportedly led to an investigation,” but does not state that a court‑martial occurre.

[202]In re Estate of Ferdinand E. Marcos Human Rights Litigation, United States District Court for the District of Hawaii, 1995, 910 F. Supp. 1460, 1463 (D. Haw. 1995)

[203] The appeal was limited to a procedural matter concerning a refusal to grant a severance: an application for the prosecution of one defendant to be heard separately, United States v. Lee, United States Court of Appeals for the 5th Circuit, No. 83-2675, October 12, 1984, 744 F.2d 1124 (5th Cir. 1984), pp. 1124-25.

[204] The White House, “News Conference by the President,” April 29, 2009, http://www.whitehouse.gov/the_press_office/News-Conference-by-the-President-4/29/2009/ (accessed June 27, 2011) (“What I've said . . . is that waterboarding violates our ideals and our values. I do believe that it is torture.”). Josh Meyer, “Holder calls waterboarding torture; Obama’s nominee for Attorney General promises big changes at a ‘badly shaken’ Justice Department,” Los Angeles Times, January 16, 2009 (quoting Attorney General-designate Eric Holder during his confirmation hearing, “Waterboarding is torture”).

[205] “Former Bush official: Waterboarding is torture,” Associated Press, January 18, 2008; “Intelligence Chief Couches Reference to Waterboarding as ‘Torture,’ Associated Press, January 13, 2008.

[206] Memorandum from William J. Haynes, II, general counsel, to secretary of defense, regarding “Counter-Resistance Techniques,” (with attachments), November 27, 2002, approved December 2, 2002, http://www.washingtonpost.com/wp-srv/nation/documents/dodmemos.pdf (accessed June 15, 2011).

[207]Department of the Army, Field Manual 34-52: Intelligence Interrogation, September 28, 1992, http://www.fas.org/irp/doddir/army/fm34-52.pdf (accessed June 27, 2011), pp. 1-9. In September 2006, the army replaced FM 34-52 with FM 2-22.3: Human Intelligence Collector Operations, http://www.loc.gov/rr/frd/Military_Law/pdf/intel_interrrogation_sept-1992.pdf (accessed June 15, 2011). The new version has been criticized for guidelines in the appendix that could be construed as permitting US interrogators to use sleep deprivation and sensory deprivation techniques on high value detainees. See Letter from interrogators and defense officials to Robert M. Gates, November 16, 2010, http://www.humanrightsfirst.org/our-work/law-and-security/torture-and-accountability/appendix-m-of-the-army-field-manual/letter-from-interrogators-and-intelligence-officials/ (accessed June 16, 2011).

[208] The UN Committee Against Torture (CAT), in its consideration of the report of Israel, for example, noted that methods allegedly included: “(1) restraining in very painful conditions, (2) hooding under special conditions, (3) sounding of loud music for prolonged periods, (4) sleep deprivation for prolonged periods, (5) threats, including death threats, (6) violent shaking, and (7) using cold air to chill, and are, in the Committee’s view, breaches of article 16 and also constitute torture as defined in article 1 of the Convention. This conclusion is particularly evident where such methods of interrogation are used in combination, which appears to be the standard case.” CAT, “Consideration of Reports Submitted by State Parties under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, Israel,” A/52/44, September 5, 1997, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.52.44,paras.253-260.En?OpenDocument (accessed June 27, 2011), para. 257, emphasis added). See also, CAT, “Consideration of Reports Submitted by State Parties under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, Republic of Korea,” A/52/44, November 13, 1996, para. 56 (severe sleep deprivation constitutes torture); CAT, “Consideration of Reports Submitted by State Parties under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, New Zealand,” A/48/44, June 26, 1993, para.148 (threat of torture constitutes torture).

[209] CAT, “Consideration of Reports Submitted by State Parties under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, United States of America,” CAT/C/USA/CO/2, July 25, 2006, http://www.universalhumanrightsindex.org/documents/828/877/document/en/text.html (accessed June 27, 2011), para. 24.

[210] UN Commission on Human Rights, “Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,” A/59/324, September 1, 2004, http://www.statewatch.org/news/2004/nov/un-torture-doc1.pdf (accessed June 27, 2011), para 17.

[211] See Human Rights Watch, “United States: Critique of State Department’s Human Rights Report,” April 3, 2003, http://www.hrw.org/en/news/2003/04/03/united-states-critique-state-departments-human-rights-report).

[212] US State Department, Bureau of Democracy, Human Rights, and Labor, “Country Reports on Human Rights Practices—2004,” February 28, 2005, http://www.state.gov/g/drl/rls/hrrpt/2004/ (accessed June 27, 2011).

[213] See Department of the Army, Field Manual 34-52, http://www.fas.org/irp/doddir/army/fm34-52.pdf, chapter 1 (“The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited by law and is neither authorized nor condoned by the US Government”). Under 18 U.S.C. sec. 2340(1), torture is defined to include an act specifically intended to inflict severe mental pain or suffering. Section 2340(2) defines “severe mental pain or suffering” to mean: “the prolonged mental harm caused by or resulting from (A) the intentional infliction or threatened infliction of severe physical pain or suffering; or… (C) the threat of imminent death.”

According the UN special rapporteur on torture, “A number of decisions by human rights monitoring mechanisms have referred to the notion of mental pain or suffering, including suffering through intimidation and threats, as a violation of the prohibition of torture and other forms of ill-treatment. Similarly, international humanitarian law prohibits at any time and any place whatsoever any threats to commit violence to the life, health and physical or mental well-being of persons. It is my opinion that serious and credible threats, including death threats, to the physical integrity of the victim or a third person can amount to cruel, inhuman or degrading treatment or even torture, especially when the victim remains in the hands of law enforcement officials.” Commission on Human Rights, “Civil and Political Rights, Including the Questions of: Torture and Detention, Report of the Special Rapporteur, Sir Nigel Rodley, submitted pursuant to Commission on Human Rights resolution 2001/62,” E/CN.4/2002/76, Annex III., December 27, 2001, p. 10.

See also UN Commission on Human Rights, “Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” Resolution 2002/38, UN E/CN/4/RES/2002/38, which states, “intimidation and coercion, as described in article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, including serious and credible threats, as well as death threats, to the physical integrity of the victim or of a third person, can amount to cruel, inhuman or degrading treatment or to torture.” In Brazil, for example, the UN Special Rapporteur on Torture found that “the most common forms of torture were electric shocks, beatings, and threats.” Quoted in US Department of State, Bureau of Democracy, Human Rights, and Labor, “Country Reports on Human Rights Practices—2001: Brazil,” March 4, 2002, http://www.state.gov/g/drl/rls/hrrpt/2001/wha/8305.htm (accessed June 27, 2011).

[214]Maj. Gen. George R. Fay, Department of the Army, “AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade,” August 23, 2004, http://www.defense.gov/news/aug2004/d20040825fay.pdf (accessed June 21, 2011), p. 68.

[215]Hamdi, et al. v. Rumsfeld, Secretary of Defense, et al., United States Supreme Court, No. 03-6696, June 28, 2004, 2004 US LEXIS 4761, p. 13.

[216]Federal law 22 U.S.C. sec. 2304(d)(1) (1994).

[217] International Convention for the Protection of All Persons from Enforced Disappearance, adopted December 20, 2006, GA res. 61/177, UN Doc. A/RES/61/177 (2006), entered into force December 23, 2010, http://www1.umn.edu/humanrts/instree/h4paped.html (accessed June 27, 201), art.2 (emphasis added). The US is not a party to the convention.

[218] Ibid.,.17(1). See also, art. 20.

[219] Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 3452 (XXX), annex, 30 U.N. GAOR Supp. (No. 34) at 91, U.N. Doc. A/10034 (1975), http://www1.umn.edu/humanrts/instree/h1dpast.htm (accessed June 27, 2011), article 10.

[220] UN General Assembly, “Torture and other cruel, inhuman or degrading treatment or punishment,” Resolution 60/148, UN Doc. A/RES/60/148, February 21, 2006, p.2, art.11; UN Commission on Human Rights, “Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” Resolution 2005/39, UN Doc. E/CN.4/RES/2005/39, April 19, 2005, art.9.

[221] UN Commission on Human Rights, “Civil and Political Rights, Including the Question of: Disappearances and Summary Execution, Report of the Working Group on Enforced or Involuntary Disappearances,” UN Doc. E/CN.4/2006/56, December 27, 2005, para. 22.

[222] 25th International Conference of the Red Cross, Geneva, October 23-31, 1986, “Obtaining and transmitting personal data as a means of protection and of preventing disappearances,” Res. XIII, (adopted by consensus), sec. 2434.

[223] 27th International Conference of the Red Cross and Red Crescent, Geneva, October 31 – November 6, 1999, “Adoption of the Declaration and the Plan of Action,” Res.I (adopted by consensus).

[224] International Committee of the Red Cross, Regional Delegation for United States and Canada, “ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody,” February 2007, http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf (accessed June 15, 2011), p. 8.

[225] Ibid., p. 24.

[226] 28 Code of Federal Regulations sec. 0.25(a) (2007).

[227] Memorandum from White House Counsel Alberto Gonzales to President George W. Bush, regarding “Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban,” January 25, 2002, http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.25.pdf (accessed June 15, 2011).

[228] President George W. Bush, interview by Martha Raddatz, ABC News, April 11, 2008, transcript at http://abcnews.go.com/Politics/story?id=4634219&page=1  (accessed June 27, 2011). See also George W. Bush, interview by Matt Lauer, “A Conversation with George W. Bush: Decision Points,” NBC News, November 8, 2010, transcript at http://www.msnbc.msn.com/id/40076644/ns/politics-decision_points/ (accessed June 27, 2011) (Bush: “I said to our team, ‘Are the techniques legal?’ And a legal team says, ‘Yes, they are.’ And I said, ‘Use them.’” Q “Why is waterboarding legal, in your opinion?” Bush: “Because a lawyer said it was legal. He said it did not fall within the anti-torture act. I'm not a lawyer, and -- but you've got to trust the judgment of people around you, and I do.”

[229] Mistake of law appears to be ruled out as a defense at customary international law. See Antonio Cassese, “The Statute of the International Criminal Court: Some Preliminary Reflections,” European Journal of International Law, 10 (1999), http://www.ejil.org/pdfs/10/1/570.pdf (accessed June 15, 2011), p. 155. Under article 2(3) of the Convention against Torture, “[a]n order from a superior officer or a public authority may not be invoked as a justification of torture.”

[230] Livingston Hall & Selig J. Seligman, “Mistake of Law and Mens Rea,” University of Chicago Law Review, vol. 8, no. 4 (June 1941), p. 652 ("[l]awyers are under enough temptations toward dishonesty already, without giving them the power to grant indulgences, for a fee, in criminal cases.").

[231]United States v. Urfer, United States Court of Appeals for the 7th Circuit, April 26, 2002, 287 F.3d 663, 665 (7th Cir. 2002).

[232] Model Penal Code sec. 2.04(3)(b) (rev.ed. 1985). According to one in-depth analysis, while there is a “widespread belief in OLC's immunity-conferring power,” and there are strong practical and institutional considerations that stand in the way of the Justice Department prosecuting someone who relied on its opinions, the actual immunizing effect of OLC opinions appears to be “ambiguous as a doctrinal matter.” The most applicable exception to the ignorance-is-no-defense maxim, labeled "entrapment by estoppel" (EBE) applies “when four requirements are met: first, a government official with authority over the area in question affirmatively represented that the conduct was legal; second, the defendant relied on the representation; third, reliance was reasonable; and fourth, prosecution would be unfair.” According to this analysis, the applicability of this affirmative defense in the context of the OLC is attenuated by the fact that unlike the paradigmatic EBE situation where the two parties are “typically a public official and a private citizen, often on adversarial footing, with the advice tendered at arm's length, [in] the OLC context, the two are members of the same team: the executive branch.… The fear is that granting [EBE] in practice may amount to providing advance immunity for officials' intended actions.” This fear would be augmented, of course, when the potential defendants are top-ranking government officials who solicited the advice. “Note: The Immunity-Conferring Power of the Office of Legal Counsel,” Harvard Law Review, vol. 121 (2008), http://hlr.rubystudio.com/media/pdf/office_legal_counsel.pdf  (accessed June 27, 2011), pp. 2086, 2092-5 (footnotes omitted). But see Joseph Lavitt, “The Crime of Conviction of John Choon Yoo: The Actual Criminality in the OLC During the Bush Administration,” Maine Law Review, vol. 62, no. 1 (Fall 2009), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1474940##  (accessed June 27, 2011), distinguishing the defense of "advice of counsel" from reasonable reliance upon the assurance of government officials.

[233]United States v. Albertini, United States Court of Appeals for the 9th Circuit, October 15, 1987, 830 F.2d 985, 989 (9th Cir. 1987) (citations omitted).

[234] Detainee Treatment Act of 2005, Public Law 163-109, 119 Stat. 3136, January 6, 2006, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_public_laws&docid=f:publ163.109.pdf (June 21, 2011), sec. 1404(a).

[235] The ACLU has stated, “persons who might not be covered by the ‘advice of counsel’ defense include: persons who engaged in torture or abuse prior to the issuance of the OLC opinions; persons who did not rely on the OLC opinions; persons who knew the OLC opinions did not accurately reflect the law; persons who are lawyers or were trained as interrogators on applicable law; persons who acted outside the scope of the OLC opinions; or any persons who ordered the OLC opinions drafted specifically for the purpose of providing a defense. The determination of the likely effect of the statutory defense would depend on the facts of a particular instance of alleged torture and abuse. There is no immunity, and certainly nothing that should cut off a criminal investigation before it even starts.” See ACLU Letter to US Attorney General Eric Holder, “ACLU Asks Justice Department to Appoint Independent Prosecutor to Investigate Torture,” March 18, 2009, http://www.aclu.org/national-security/aclu-asks-justice-department-appoint-independent-prosecutor-investigate-torture, (accessed June 17, 2011).

[236] See Richard B. Bilder & Detlev F. Vagts, Editorial Comment, “Speaking Law to Power: Lawyers and Torture,” American Journal of International Law, vol. 98, no. 4 (October 2004), p. 694.

[237]Anthony Lewis, “Making Torture Legal,” The New York Review of Books, July 15, 2004, pp, 4-8.

[238] Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals (New York: Doubleday, 2008), p. 328

[239]Ibid., p. 308.

[240]Ibid., p. 309.

[241] Vice President Dick Cheney, interview by Jon Ward and John Solomon, Transcript, Washington Times, December 17, 2008, http://www.washingtontimes.com/weblogs/potus-notes/2008/Dec/22/cheney-interview-transcript/ (accessed June 15, 2011).

[242] In his interview with the Justice Department’s Office of Professional Responsibility (OPR), “Chertoff stated that he told group that in his view, it would not be possible for the Department to provide an advance declination. Rizzo confirmed, in his interview, that Chertoff flatly refused to provide any form of advance declination to the CIA. Although Bybee was not present at this meeting, he told us that he was aware that “there was some discussion with the criminal division over the question of providing advance immunity… [and that it] was not their practice, to provide that kind of advance [sic].” Department of Justice, Office of Professional Responsibility, “Investigation into the Office of Legal Counsel’s Memoranda concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists,” July 29, 2009, http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729.pdf (accessed June 17, 2011) (“OPR Investigation”), p. 47.

[243] Ibid., p. 11. OPR recommended that both lawyers be referred to their respective state bar associations for discipline. Associate Deputy Attorney General David Margolis overruled the OPR’s recommended sanctions, however, finding that while Yoo and Bybee exercised “poor judgment,” they did not knowingly provide false advice, and therefore were not guilty of professional misconduct. Memorandum from David Margolis, associate deputy attorney general, to attorney general and deputy attorney general, regarding “Memorandum of Decision Regarding the Objections to the Findings of Professional Misconduct in the Office of Professional Responsibility’s Report of Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists,” January 5, 2010, http://judiciary.house.gov/hearings/pdf/DAGMargolisMemo100105.pdf (accessed June 27, 2011), p. 68.

[244] R. Jeffrey Smith and Dan Eggen , “Gonzales Helped Set the Course for Detainees,” Washington Post, January 5, 2005, http://www.washingtonpost.com/ac2/wp-dyn/A48446-2005Jan4?language=printer (accessed June 15, 2011).

[245] OPR Investigation, http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729.pdf, p. 39.

[246] Ibid., p. 51.

[247] Ibid., p. 160.

[248] Ibid., pp. 150-51.

[249] Ibid., p. 131.

[250] Email communication from James Comey to Chuck Rosenberg, April 27, 2005, available at “Justice Department Communication on Interrogation Opinions,” New York Times, http://documents.nytimes.com/justice-department-communication-on-interrogation-opinions#p=1 (accessed June 15, 2011).

[251]For example, the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), article 146 (states parties “shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.”). Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted  August 12, 1949, 75 U.N.T.S. 287, entered into force October 21, 1950. See ICRC, Customary International Humanitarian Law, rule 158; see also Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, http://untreaty.un.org/cod/icc/index.html (accessed June 15, 2011), art. 21, preamble (noting "the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes").

[252] ICRC, Customary International Humanitarian Law, pp. 568-74.

[253] Ibid., p. 556.

[254] Ibid., p. 554.

[255] The duty to investigate and prosecute those responsible for grave violations of human rights has its legal basis in such treaties as the International Covenant on Civil and Political Rights (art. 2); and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (arts. 4, 5, and 7).

[256] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), entered into force March 23, 1976, art. 2. The US ratified the ICCPR in 1992.

[257] Command responsibility and its elements are well-established under customary international law. See International Criminal Court for the former Yugoslavia, Delalic and Others, Judgment, IT-96-21-T, Nov. 16, 1998, sec. 333. See e.g., Rome Statute of the International Criminal Court, art. 28; First Additional Protocol of 1977 to the Geneva Conventions, art.86(2). The Convention against Torture in articles 4 and 16 provide that superior officials may be found guilty of complicity or acquiescence if they knew or should have known of torture or ill-treatment practiced by persons under their command. See Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture: A Commentary (Oxford: Oxford Univ. Press, 2008), p. 248.

[258]United States v. Reynolds, United States Supreme Court, No. 21, March 9, 1953, 345 U.S. 1 (1953).

[259] See, for example, In re United States, United States Court of Appeals for the District of Columbia Circuit, April 14, 1989,872 F.2d 472, 477 (D.C. Cir. 1989) (refusing to dismiss Federal Tort Claims action merely on basis of the government’s “unilateral assertion that privileged information lies at the core of th[e] case.”); Monarch Assurance P.L.C. v. United States, 244 F.3d 1356, 1364 (Fed. Cir. 2001) (reversing premature dismissal of contract suit on basis of the privilege so that plaintiff could engage in further discovery to support claim with non-privileged evidence); Spock v. United States, United States District Court for the Southern District of New York, 464 F. Supp. 510, 519 (S.D.N.Y. 1978) (rejecting pre-discovery motion to dismiss Federal Tort Claims Act suit on state secrets grounds as premature); Hepting v. AT&T Corp., 439 F. Supp.2d 974, 994 (N.D. Cal. 2006) (refusing to evaluate whether parties could prove claims and defenses without state secrets, and refusing to dismiss on that basis).

[260] See, for example, El-Masri v. United States, United States Court of Appeals for the 4th Circuit, No. 06-1667, March 2, 2007, 552 U.S. 947 (2007)(upholding lower court’s dismissal of suit on grounds that El-Masri, who alleged that he was kidnapped, illegally detained and abused by the CIA, would not be able to make his case except by using evidence barred by the state secrets privilege); Arar v. Ashcroft, 130 S.Ct. 3409 (2010) (upholding lower court’s dismissal of suit, on the basis that it would interfere with national security and foreign policy, by Canadian national who claimed he was sent by the United States to Syria, where he was tortured for one year until his release); Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. Cal. 2010)(cert. denied May 2011) (dismissing on state secrets grounds a case against the CIA’s alleged flight-planning contractor for allegedly flying five individuals to secret sites and countries where they were tortured).

[261] See, for example, Rasul v. Myers, 130 S.Ct. 1013 (2009)(affirming lower court’s dismissal of torture and related claims on immunity grounds); Mohammed v. Rumsfeld, 2011 WL 2462851 (June 21 2011, D.C.Cir.)(dismissing claims on immunity grounds). See also Saleh et al v. Titan Corporation, Amicus Curiae Brief for the United States of America, May 2011, available at http://www.ccrjustice.org/files/09-1313%20Titan%20US%20Br%20(2).pdf (accessed June 23, 2011) (brief submitted by the Obama administration claiming that the court need not consider the case because federal preemption blocked consideration, and because there was no disagreement among lower courts requiring resolution by the highest court in the land).

[262]While compensation in conjunction with a full criminal investigation comports with international standards, the Human Rights Committee, which supervises compliance with the ICCPR has recognized that "purely disciplinary and administrative remedies" cannot be deemed to constitute effective remedies when a victim has suffered "a particularly serious violation[] of human rights, notably in the event of an alleged violation of the right to life." Bautista v. Colombia, communication No. 563/1993, para. 8.2, CCPR/C/55/D/563/1993 (1995).

[263]Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987., art. 14. The US ratified Convention against Torture in 1994.

[264] In Mohamed v. Jespesen for example, the 9th Circuit Court of Appeals rejected the plaintiffs’ claims of torture and abuse suffered while in detention under the Bush administration. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1091-1092 (9th Cir. Cal. 2010). However it did so not based on the merits of the case but based on the state secrets privilege. Under this US legal doctrine, a case must be dismissed even if the claims potentially have merit, if bringing the litigation will reveal state secrets that will negatively impact national security. In doing so however the court noted and encouraged the possibility of compensation as a remedy. “Our holding today. . .does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs' claims have merit and whether misjudgments or mistakes were made that violated plaintiffs' human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in the United States during World War II.”

[265] Ibid., 1091.

[266] Ibid., 1092.

[267] President Bush, interview by Martha Raddatz, http://abcnews.go.com/Politics/story?id=4634219&page=1.

[268]George W. Bush, Decision Points (New York: Crown Publishers, 2010), p. 169

[269]Ibid., p. 170. Bush repeated the admission on a number of occasions after the book was published.

[270] Richard B. Cheney, interview by Bob Schieffer, Face the Nation, CBS, May 10, 2009, http://www.cbsnews.com/htdocs/pdf/FTN_051009.pdf (accessed June 27, 2011), pp. 4-5. 

[271] George W. Bush, “Presidential Radio Address,” March 8, 2008, quoted in John R. Crook, “President Vetoes Legislation to Limit CIA Interrogation Methods; Superseded Justice Memorandum on Interrogation Techniques Fans Controversy,” American Journal of International Law, vol. 102, no. 3 (July 2008).

[272]David Johnston, “At a Secret Interrogation, Dispute Flared Over Tactics,” New York Times, September 10, 2006, http://www.nytimes.com/2006/09/10/washington/10detain.html (accessed June 15, 2011) (“According to accounts by three former intelligence officials, the C.I.A. understood that the legal foundation for its role had been spelled out in a sweeping classified directive signed by Mr. Bush on Sept. 17, 2001. The directive, known as a memorandum of notification, authorized the C.I.A. for the first time to capture, detain and interrogate terrorism suspects, providing the foundation for what became its secret prison system.”) See alsoDana Priest,CIA Holds Terror Suspects in Secret Prisons,” Washington Post, November 2, 2005.

[273]Bush, Decision Points, p 169.

[274] “Transcript—President Bush’s Speech on Terrorism,” New York Times, September 6, 2006, http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?pagewanted=print (accessed June, 16 2011).

[275] Bob Woodward, Bush at War, (London: Simon and Schuster UK, 2002), pp. 146-47. Woodward does not specify his source for this quote. His book is based on numerous interviews of Bush administration officials including George Bush, Condoleezza Rice, Colin Powell, and George Tenet.

[276] “Remarks by President George W. Bush at the 20th Anniversary of the National Endowment for Democracy,” United States Chamber of Commerce, Washington, DC, November 6, 2003, http://www.ned.org/george-w-bush/remarks-by-president-george-w-bush-at-the-20th-anniversary (accessed June 15, 2011).

[277] Mayer, The Dark Side, p. 288.

[278] Cheney has been described by one author as the “single-minded driving force behind the most aggressive aspects of the Bush administration’s counterterrorism policy” (Mayer, The Dark Side, p. 343) and by the Washington Post as “a prime mover behind the Bush administration's decision to violate the Geneva Conventions and the U.N. Convention Against Torture.” (“Vice President for Torture,” Washington Post, October 26, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/10/25/AR2005102501388.html (accessed June 27, 2011)).

[279] Cheney, interview by Jon Ward and John Solomon, Washington Times, http://www.washingtontimes.com/weblogs/potus-notes/2008/Dec/22/cheney-interview-transcript/.

[280] Senate Select Committee on Intelligence (SSCI), “Declassified Narrative Describing the Department of Justice Office of Legal Counsel’s Opinions on the CIA’s Detention and Interrogation Program,” document released April 22, 2009, http://intelligence.senate.gov/pdfs/olcopinion.pdf (accessed June 24, 2011), p. 7.

[281] Dan Eggen, “Cheney's Remarks Fuel Torture Debate,” Washington Post, October 27, 2006.

[282] Richard Cheney, former vice president, interview by Chris Wallace, FOX News Sunday, FOX, August 30, 2009, Transcript, http://www.foxnews.com/politics/2009/08/30/raw-data-transcript-cheney-fox-news-sunday/ (accessed June 15, 2011).

[283] Katharine Q. Seeyle, “A Nation Challenged: The Prisoners; First ‘Unlawful Combatants’ Seized in Afghanistan Arrive at US Base in Cuba,” New York Times, January 12, 2002, p. A7.

[284]“Geneva Convention Doesn’t Cover Detainees,” Reuters, January 11, 2002.

[285] Secretary of Defense Donald H. Rumsfeld, interview by Matt Lauer, Today, NBC, May 5, 2004, Transcript, http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2986 (accessed June 15, 2011).

[286] Douglas Jehl and Andrea Elliott, “The Reach of War: GI Instructors; Cuba Base Sent its Interrogators to Iraqi Prison,” New York Times, May 29, 2004, p. A1.

[287] William H. Taft, IV, “Keynote Remarks,” The Geneva Convention and the Rules of War in the Post 9-11 and Iraq World, conference, Washington College of Law American University, March 24, 2005. On file with Human Rights Watch.

[288] That doctrine is embodied in US Department of the Army, Field Manual 34-52:Intelligence Interrogation, which stresses cooperation as the basis for successful interrogation. It specifically prohibits torture or coercive interrogations. The field manual also lists relevant sections of the Geneva Conventions, including the prohibition against, “subjecting the individual to humiliating or degrading treatment, implying harm to the individual or his property or implying a deprivation of rights guaranteed under international law because of failure to cooperate.”

[289] Memorandum from LTC Jerald Phifer to commander, Joint Task Force 170, regarding “Request for Approval of Counter-Resistance Strategies,” October 11, 2002, attached to Memorandum from William J. Haynes,II, to secretary of defense, “Counter-Resistance Techniques,” November 27, 2002, and approved by Secretary Rumsfeld on December 2, 2002, http://www.washingtonpost.com/wp-srv/nation/documents/dodmemos.pdf (accessed June 15, 2011) (capitalization in original).

[290] Memorandum from Donald Rumsfeld, secretary of defense, to commander, US Southern Command, regarding “Counter-Resistance Techniques,” January 15, 2003, www.washingtonpost.com/wp-srv/nation/documents/011503rumsfeld.pdf (accessed June 15, 2011).

[291]Memorandum from Donald Rumsfeld, secretary of defense, to [James T. Hill,] Commander, US Southern Command, regarding "Counter-Resistance Techniques in the War on Terrorism," April 16, 2003. The memorandum can be found in Karen J. Greenberg and Joshua L. Dratel, ed., The Torture Papers, p. 360.


[293] James R. Schlesinger, Department of Defense, “Final Report of the Independent Panel to Review DoD Detention Operations,” August 24, 2004, http://www.defense.gov/news/Aug2004/d20040824finalreport.pdf (accessed June 21, 2011) (“Schlesinger Report”).

[294]Ibid., p. 68.

[295] Senate Committee of Armed Services, “Report on Inquiry into the Treatment of Detainees in US Custody,” November 20, 2008, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf (accessed June 21, 2011) (“SASC Report”), Conclusion 13, p. xxviii.

[296] See Donald Rumsfeld, interview by David Frost, BBC Breakfast with Frost, BBC News, June 27, 2004, transcript at http://news.bbc.co.uk/2/hi/programmes/breakfast_with_frost/3844047.stm (accessed June 15, 2011) (“You asked how [approval of the techniques] happened. It happened because there was a single detainee that was being interrogated. His name was Katani - Al Katani - who was considered to be the 20th hijacker in connection with the 9-11 attack on the United States…”.See also Philippe Sands, “Torture Team: Rumsfeld’s Memo and the Betrayal of American Values,” (New York: Palgrave Macmillan, 2008), p. 8.

[297]Rumsfeld, BBC Breakfast with Frost,"http://news.bbc.co.uk/2/hi/programmes/breakfast_with_frost/3844047.stm.

[298]Sands, Torture Team, pp. 130-31. Gen. James T. Hill, Commander of Southern Command, told Sands, “none of us can recall who gave that.” Sands concludes from the testimony of of Lt Gen. Randall M. Schmidt that the officials felt “it was safer to assume that Rumsfeld approved it.” Testimony of LTG Randall M. Schmidt, taken August 24, 2005, at Davis Mountain Air Force Base, Arizona, p. 14 http://www.salon.com/entertainment/col/fix/2006/04/14/fri/Schmidt.pdf (accessed June 14, 2011).

[299]Sands, Torture Team, p. 138.

[300] Testimony of Schmidt, August 24, 2005, http://www.salon.com/entertainment/col/fix/2006/04/14/fri/Schmidt.pdf.

[301]Interrogation log for detainee 063 [al-Qahtani], obtained by Time, available at http://www.time.com/time/2006/log/log.pdf (accessed June 15, 2011). See Adam Zagorin, “Inside the Interrogation of Detainee 063,” Time, June 12, 2005, http://www.time.com/time/printout/0,8816,1071284,00.html (accessed June 27, 2011).

[302]See Sands, Torture Team, p. 8.

[303]Interrogation log for detainee 063 [al-Qahtani], http://www.time.com/time/2006/log/log.pdf; Zagorin, “Inside the Interrogation of Detainee 063,” http://www.time.com/time/printout/0,8816,1071284,00.html.

[304]Zagorin, “Inside the Interrogation of Detainee 063,” http://www.time.com/time/printout/0,8816,1071284,00.html.

[305] Interrogation log for detainee 063 [al-Qahtani], http://www.time.com/time/2006/log/log.pdf.

[306] Testimony of Schmidt, August 24, 2005, http://www.salon.com/entertainment/col/fix/2006/04/14/fri/Schmidt.pdf.

[307]Michael Ratner and the Center for Constitutional Rights, The Trial of Donald Rumsfeld (New York: New Press, 2008), p. 59.

[308] “[David Becker] told the Committee that, on several occasions, [Maj. Gen.] Dunlavey had advised him that the office of Deputy Secretary of Defense Wolfowitz had called to express concerns about the insufficient intelligence production at GTMO [Guantanamo]. Mr. Becker recalled [Maj. Gen.] Dunlavey telling him after one of these calls, that the Deputy Secretary himself said that GTMO should use more aggressive interrogation techniques.” SASC staff interview with David Becker, September 17, 2007, cited in SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, p. 41.

[309] SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, pp. 73-4 and 142. However, the Report notes, at p. 74, that Gen. Miller stated in his SASC interview that he “misspoke” in his interview with the Army inspector general. While Miller stated in his interview with the Army inspector general that he spoke regularly with Wolfowitz, in his interview with the SASC that he stated that he only briefed Wolfowitz quarterly, in person. Another officer working at Guantanamo stated in his SASC Interview that Miller and Wolfowitz were in phone contact “a lot.”

[310] Army Brig. Gen. John Furlow and Air Force Lt. Gen. Randall M. Schmidt, “Army Regulation 15-6: Final Report: Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility,” April 1, 2005 (amended June 9, 2005), http://www.defense.gov/news/Jul2005/d20050714report.pdf (accessed June 21, 2011).

[311] Testimony of Schmidt, August 24, 2005, http://www.salon.com/entertainment/col/fix/2006/04/14/fri/Schmidt.pdf.

[312] Ibid., p. 33.

[313] Ibid.

[314] Ibid., p. 34.

[315] Ibid., p. 36.

[316] Testimony of Gen. James T. Hill, taken October 7, 2005, at Coral Gables, Florida, by Department of the Army inspector general, http://images.salon.com/ent/col/fix/2006/04/14/fri/HILL.pdf (accessed June 15, 2011).

[317] Ibid., p. 19.

[318] SASC Report, http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf, p. 106-107, citing Memorandum from Alberto Mora to the Inspector General of the Department of the Navy, “Statement for the Record: Office Of General Counsel Involvement in Interrogation Issues,” July 7, 2004, http://www.newyorker.com/images/pdf/2006/02/27/moramemo.pdf  (accessed June 26, 2011) ( “Mora Statement for the Record”), pp. 2-3. Mora included in his communications to Rumsfeld’s office a memorandum from Navy JAG Corps Commander Stephen Gallotta providing a legal analysis, in which Commander Gallotta wrote that some of the techniques, both taken alone and especially when taken together, could amount to torture; that some constituted assault; and that most of the techniques were “per se illegal.” See section “Authorization in the Face of Controversy,” below.

[319] Bob Woodward, “Detainee Tortured, Says US Official: Trial Overseer Cites ‘Abusive’ Methods Against 9/11 Suspect,” Washington Post, January 14, 2009.

[320] See “Setback for ‘US Taleban’ Defence,” BBC News, April 1, 2002, http://news.bbc.co.uk/1/hi/world/americas/1905647.stm (accessed June 15, 2011).

[321]United States of America v. John Philip Walker Lindh, US District Court, E.D. Va., No. 02-37-A, Proffer of facts in Support of Defendant’s Motion to Suppress, June 13, 2002, http://www.lindhdefense.info/20020613_FactsSuppSuppress.pdf (accessed June 15, 2011).

[322] Ibid.

[323]Richard A. Serrano, “Prison Interrogators’ Gloves Came off before Abu Ghraib,” Los Angeles Times, June 9, 2004.

[324] Ibid.On the eve of a court hearing on his motion to suppress his confession, at which he likely would have testified to his treatment in Afghanistan, Lindh agreed to plead guilty to lesser charges than those for which he was indicted. As part of the arrangement Lindh, reportedly at the request of the Department of Defense, agreed to the following statement: “The defendant agrees that this agreement puts to rest his claims of mistreatment by the United States military, and all claims of mistreatment are withdrawn. The defendant acknowledges that he was not intentionally mistreated by the US military.” See Dave Lindorff, “A First Glimpse at Bush’s Torture Show,” Counterpunch, June 5-6, 2004; Dave Lindorff, “Chertoff and Torture,” The Nation, February 14, 2005.

[325] Memorandum from Donald Rumsfeld to Jim Haynes, regarding “Walker,” January 14, 2002, http://edge-cache.gawker.com/gawker/rumsfeld.html (accessed June 15, 2011), p. 84.

[326] Peter Slevin and Robin Wright, “Pentagon Was Warned of Abuse Months Ago,” Washington Post, May 8, 2004, p. A12; Mark Matthews, “Powell: Bush Told of Red Cross Reports,” Baltimore Sun, May 12, 2004.

[327]Slevin and Wright, “Pentagon Was Warned of Abuse Months Ago.”

[328] Human Rights Watch interviews with Afghan officials, Kabul, September 2002.

[329]See for example, Transcript of news conference, Secretary of Defense Rumsfeld, the Pentagon, January 22, 2002, http://www.globalsecurity.org/military/library/news/2002/01/mil-020122-usia01.htm (accessed June 27, 2011) (dismissing claims about mistreatment of detainees captured in Afghanistan as “utter nonsense”); Transcript of news conference, Secretary Rumsfeld and Gen. Myers, the Pentagon, February 12, 2002, http://www.defense.gov/transcripts/transcript.aspx?transcriptid=2636 (accessed June 27, 2011).

[330] International Committee of the Red Cross, Regional Delegation for United States and Canada, “ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody,” February 2007, http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf (accessed June 15, 2011), pp. 4-5.

[331] Office of the Provost Marshal General of the Army, “Report on Detention and Corrections Operations in Iraq,” November 5, 2003, http://www.aclu.org/torturefoia/released/18TF.pdf (accessed June 15, 2011); “Chronology: Early Warnings Missed; A Prison-Abuse Timeline,” Los Angeles Times, May 16, 2004.

[332] Josh White, “US Generals in Iraq Were Told of Abuse Early, Inquiry Finds,” Washington Post, December 1, 2004.

[333]Carlotta Gall, “US Military Investigating Death of Afghan in Custody,” New York Times, March 4, 2003.

[334] The Schlesinger report counted about 300 allegations of prisoner mistreatment in Iraq, Afghanistan, and Guantanamo, beginning almost immediately after the invasion of Afghanistan in 2001. In addition, there may be as many as 100 “ghost detainees” kept hidden from the ICRC. Schlesinger Report, http://www.defense.gov/news/Aug2004/d20040824finalreport.pdf, p. 5; “Rumsfeld Defends Pentagon in Abuse Scandal,” Associated Press, September 10, 2004.

[335] The Department of Defense has reported that abuses against detainees fell sharply after the Abu Ghraib revelations (Josh White, “Reported Abuse Cases Fell after Abu Ghraib,” Washington Post, March 17, 2005, p. A17). This suggests that attention to proper treatment of detainees can have a salutary effect.

[336] Ron Suskind, The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11 (New York: Simon & Schuster, 2007), pp. 82-3.

[337]Woodward, Bush at War, p.146. Woodward does not specify his source for this account.

[338] Michael Scheuer, “A Fine Rendition,” New York Times, March 11, 2005, http://www.nytimes.com/2005/03/11/opinion/11scheuer.html (accessed June 27, 2011).

[339]Transcript of “Rendition,” File on 4, BBC Current Affairs Group, February 8, 2005, http://news.bbc.co.uk/nol/shared/bsp/hi/pdfs/15_02_05_renditions.pdf (accessed June 15, 2011), p. 13.

[340]Michael Hirsh, John Barry, and Daniel Klaidman, “A Tortured Debate,” Newsweek, June 21, 2004. Al-Libi was also a principal source for Bush administration claims that al-Qaeda collaborated with Saddam Hussein, particularly the assertion by Secretary of State Colin Powell to the United Nations that Iraq had provided training in “poisons and deadly gases” for al-Qaeda.

[341] George Tenet and Bill Harlow, At the Center of the Storm: My Years at the CIA (New York: Harper Collins, 2007), p. 353-54.

[342] John BarryMichael Isikoff, and Michael Hirsh, “The Roots of Torture,” Newsweek, http://www.newsweek.com/2004/05/23/the-roots-of-torture.html (accessed June 15, 2011).

[343] Suskind, The One Percent Doctrine p. 87. Another person in attendance confirmed this in an interview with Jane Mayer. Mayer, The Dark Side, p. 365.

[344] Dana Priest and Barton Gellman, “US Decries Abuse but Defends Interrogations,” Washington Post, December 25, 2002.

[345]Jane Mayer, “Outsourcing Torture: The Secret History of America’s ‘Extraordinary Rendition’ Program,” New Yorker, February 8, 2005; Transcript of “Rendition,” File on 4, http://news.bbc.co.uk/nol/shared/bsp/hi/pdfs/15_02_05_renditions.pdf; “CIA Flying Suspects to Torture?” 60 Minutes, CBS, March 6, 2005.

[346] See “US: Critique of State Department’s Human Rights Report,” Human Rights Watch news release, April 3, 2003, http://www.hrw.org/en/news/2003/04/03/united-states-critique-state-departments-human-rights-report.

[347] US State Department, Bureau of Democracy, Human Rights, and Labor, “Country Reports on Human Rights Practices—2003: Egypt,” February 25, 2004, http://www.state.gov/g/drl/rls/hrrpt/2003/27926.htm (accessed June 15, 2011).

[348] US State Department, Bureau of Democracy, Human Rights, and Labor, “Country Reports on Human Rights Practices—2003: Syria,” February 25, 2004, http://www.state.gov/g/drl/rls/hrrpt/2003/27938.htm (accessed June 15, 2011).

[349] Shannon McCaffrey, “Canadian Sent to Syria Prison Disputes US Claims against Torture,” Knight Ridder, July 28, 2004, http://www.commondreams.org/headlines04/0729-01.htm (accessed June 15, 2011). See also Dana Priest, “Man was Deported after Syrian Assurances,” Washington Post, November 20, 2003: “Spokesmen at the Justice Department and the CIA declined to comment on why they believed the Syrian assurances to be credible.” The Washington Post quoted an “Arab diplomat, whose country is actively engaged in counterterrorism operations and shares intelligence with the CIA,” as saying that it was unrealistic to believe the CIA really wanted to follow up on the assurances. "It would be stupid to keep track of them because then you would know what's going on," he said. "It's really more like 'Don't ask, don't tell.” Dana Priest, “CIA's Assurances on Transferred Suspects Doubted,” Washington Post, March 17, 2005.

[350]Dana Priest, “CIA Puts Harsh Tactics on Hold,” Washington Post, June 27, 2004, http://www.washingtonpost.com/wp-dyn/articles/A8534-2004Jun26.html (accessed June 15, 2011).

[351]Mayer, The Dark Side, p.167.

[352] Toby Harnden, “Condoleezza Rice Approved ‘Torture’ Techniques,” London Times, April 23, 2009, http://www.telegraph.co.uk/news/worldnews/northamerica/usa/5208701/Condoleezza-Rice-approved-torture-techniques.html , (accessed June 17, 2011).