July 12, 2011

I. Background: Official Sanction for Crimes against Detainees

On September 11, 2001, four commercial airliners commandeered by al Qaeda militants crashed into the World Trade Center in New York City and the Pentagon in Washington, DC, killing nearly 3,000 people. Three days after the attacks, President Bush sought and obtained a resolution from Congress authorizing him to use “all necessary and appropriate force” against those responsible for the attacks.[17] Within weeks, the US began military operations against the al Qaeda-backed Taliban government in Afghanistan. Concurrently, senior Bush administration officials publicly endorsed and privately undertook policies in the proclaimed “global war on terror” permitting the US to circumvent its international legal obligations.

On September 16, 2001, Vice President Dick Cheney said in a television interview on NBC’s Meet the Press:

We also have to work, through, sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.[18]

In prepared testimony to Congress in September 2002, Cofer Black, director of the CIA’s counterterrorism unit, said, “[T]here was ‘before’ 9/11 and ‘after’ 9/11. After 9/11 the gloves come off.”[19]

During a National Security Council “War Cabinet” on September 15, CIA Director George Tenet presented options for covert CIA operations including apprehending terrorism suspects abroad and transferring them to third counties, as well as other operations.[20] Two days later, on September 17, President Bush signed a still‑classified memorandum authorizing the CIA to detain and interrogate suspected al Qaeda members and others believed to be involved in the attacks.[21]

Led by Vice President Cheney’s legal counsel, David Addington, s enior administration lawyers—including then-White House counsel, and later attorney general, Alberto Gonzales—drafted a series of legal memoranda to build the legal framework for circumventing international law restraints on the interrogation of prisoners.[22] These memos essentially argued that the Geneva Conventions of 1949, the foundation treaties of war-time conduct, did not apply to individuals detained in connection to the armed conflict in Afghanistan.

A January 9, 2002 draft memo by John Yoo, deputy assistant attorney general in the OLC, advised the Defense Department that the Geneva Conventions did not apply to members of al Qaeda because it was not a state and thus not a party to the conventions. The memo said they also did not apply to the Taliban, as it could not be considered a government because Afghanistan was a “failed state.” The memo also argued that the president could suspend operation of the Geneva Conventions and that customary laws of war did not bind the US because they did not constitute federal law.[23]

William H. Taft, IV, the State Department's legal adviser, warned the argument that the president could suspend the Geneva Conventions was “legally flawed” and the memo’s reasoning was “incorrect as well as incomplete.” The argument that Afghanistan as a “failed state” was no longer a party to the Geneva Conventions was, he said, “contrary to the official position of the United States, the United Nations and all other states that have considered the issue.”[24]

In a key memo dated January 25, 2002, Gonzales urged the president to declare Taliban forces in Afghanistan and al Qaeda outside the coverage of the Geneva Conventions. This, he wrote, would preserve US “flexibility” in the “war against terrorism,” which “in my judgment … renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” Gonzales also warned that US officials involved in harsh interrogation techniques could potentially be prosecuted for war crimes under US law if the conventions applied.[25]

Gonzales wrote “it was difficult to predict with confidence” how US prosecutors might apply the Geneva Conventions’ strictures against “’outrages against personal dignity’” and “’inhuman treatment.’” He argued that declaring that Taliban and al Qaeda fighters did not have protection afforded by the Geneva Conventions “substantially reduces the threat of domestic criminal prosecution.” Gonzales expressed to President Bush the concern of military leaders that these policies might “undermine US military culture which emphasizes maintaining the highest standards of conduct in combat and could introduce an element of uncertainty in the status of adversaries.”[26] Those concerns were ignored, but proved justified.

Secretary of State Colin Powell met twice with Bush to discuss his concerns about the Yoo memo. Gen. Richard Myers, the chairman of the Joint Chiefs of Staff, and other military leaders voiced similar concerns.[27] Powell argued that declaring the conventions inapplicable would “reverse over a century of US policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.”[28]

In response to the objections of Powell and others, Bush slightly modified the proposed order, but did so in a manner that effectively denied protection to the detainees: on February 7, 2002, Bush announced that while the US government would apply the “principles” of the Geneva Conventions to captured members of the Taliban, it would not consider any of them to be prisoners of war (POWs) because the US did not believe they met the convention’s requirements of an armed force as they had no military hierarchy, did not wear uniforms, did not carry arms openly, and did not conduct operations in accordance with the laws and customs of war. He said the US government considered the Geneva Conventions inapplicable to captured members of al Qaeda, though “a s a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”[29]

These decisions essentially reinterpreted the Geneva Conventions to suit the administration’s purposes. Most importantly, they downgraded existing international law, which must be followed, to the level of “principles,” which only should be followed. All persons detained in connection with an armed conflict, whether or not they are entitled to POW status,[30] are still legally entitled to basic protections under international law.[31] For instance, the “fundamental guarantees” described in article 75 of Protocol Additional of 1977 to the 1949 Geneva Conventions relating to the Protection of Victims of International Armed Conflicts (Protocol I), which the United States has long considered reflective of customary international law (a widely supported state practice accepted as law), protects all detainees from murder, “torture of all kinds, whether physical or mental,” “corporal punishment,” and “outrages upon personal dignity, in particular humiliating and degrading treatment, … and any form of indecent assault.”[32]

[17] Authorization for Use of Military Force, Public Law 107-40, 115 Stat. 224, September 18, 2001, http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/pdf/PLAW-107publ40.pdf (accessed June 24, 2011) (authorizing President George W. Bush to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons”).

[18] Vice President Dick Cheney, interview by Tim Russert, Meet the Press, NBC News, September 16, 2001, transcript available at http://emperors-clothes.com/9-11backups/nbcmp.htm (accessed June 25, 2011).

[19] Testimony of Cofer Black, former chief, DCI’s Counterterrorism Center, CIA, Before the Senate Select Committee on Intelligence and House of Representatives Permanent Select Committee on Intelligence, “Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001,” 107th Congress, September 26, 2002, http://www.access.gpo.gov/congress/senate/pdf/108hrg/96166.pdf (accessed June 21, 2011), p. 590.

[20] An account of the September 15, 2001 NSC meeting was provided by a member of the NSC Principals Group and Secretary of the Treasury Paul O’Neill, corroborated by additional administration sources, in Ron Suskind, The Price of Loyalty: George W. Bush, the White House, and the Education of Paul O’Neill (New York: Simon & Schuster Paperbacks, 2004), p. 186.

[21] The order reportedly described the need for “exceptional authorities to detain al Qaeda operatives worldwide.” 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. 40. See also, David Johnston, “At a Secret Interrogation, Dispute Flared Over Tactics” New York Times, September 17, 2001, http://www.nytimes.com/2006/09/10/washington/10detain.html (accessed June 15, 2011). See also “CIA Provides Further Details on Secret Interrogation Memos,” American Civil Liberties Union press release, January 10, 2007, http://www.aclu.org/national-security/cia-provides-further-details-secret-interrogation-memos (accessed June 15, 2011).

[22]Addington’s central role is described in Mayer, The Dark Side, and Philippe Sands, “Torture Team: Rumsfeld’s Memo and the Betrayal of American Values,” (New York: Palgrave Macmillan, 2008).

[23]Draft memorandum from John Yoo, deputy assistant attorney general, Office of Legal Counsel, to William J. Haynes II, general counsel, Department of Defense, regarding “Application of Treaties and Laws to al Qaeda and Taliban Detainees,” January 9, 2002, http://www.torturingdemocracy.org/documents/20020109.pdf (accessed June 15, 2011), pp. 11, 23, 28-9, 35.

[24] Memorandum from William H. Taft, IV, legal advisor, to John C. Yoo, regarding “Your Draft Memorandum of January 9,” January 11, 2002, http://www.torturingdemocracy.org/documents/20020111.pdf (accessed June 16, 2011).

[25] Gonzales was referring to prosecution under the War Crimes Act of 1996 (18 U.S.C. Sec. 2441), which punishes the commission of a war crimes and other serious violations of the laws of war, including torture and humiliating or degrading treatment, by or against a US national, including members of the armed forces. 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). Although the January 25 memorandum is marked “draft,” there is no record of any subsequent version of the memorandum. See Human Rights First, Attorney General Confirmation Hearings: Background Papers on Alberto Gonzales: Torture, Executive Power, the Geneva Conventions and Military Commissions, December 2004, http://www.humanrightsfirst.org/wp-content/uploads/pdf/brief_20041220_Gonz_all.pdf (accessed June 17, 2011).

[26] Memorandum from Gonzales to Bush, “Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban,” http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/02.01.25.pdf.

[27] See for example, Memorandum from Taft to Yoo, “Your Draft Memorandum of January 9,” http://www.torturingdemocracy.org/documents/20020111.pdf.

[28] Memorandum from Colin L. Powell to counsel to the president, regarding “Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan,” January 26, 2002, p. 2. The memorandum can be found in Karen J. Greenberg and Joshua L. Dratel, eds., The Torture Papers: The Road to Abu Ghraib (Cambridge: University of Cambridge Press, 2005), p. 122.

[29] Memorandum from President George W. Bush to the vice president, secretary of state, secretary of defense, attorney general, chief of staff to the president, director of Central Intelligence, assistant to the president for National Security Affairs and chairman of the Joint Chiefs of Staff, regarding “Humane Treatment of al Qaeda and Taliban Detainees,” February 7, 2002, http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf (accessed June 21, 2011).

[30] Under the Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), belligerents captured in the conflict in Afghanistan should have been treated as POWs unless and until a competent tribunal individually determined that they were not eligible for POW status. Taliban soldiers should have been accorded POW status because they openly fought for the armed forces of a state party to the Convention. Al Qaeda detainees would likely not be accorded POW status but the Conventions and customary law still provide explicit protections to all persons held in an armed conflict. See Geneva Convention relative to the Treatment of Prisoners of War, adopted August 12, 1949, 75 U.N.T.S. 135, entered into force October 21, 1950, http://www1.umn.edu/humanrts/instree/y3gctpw.htm (accessed June 27, 2011).

[31] See Human Rights Watch, Summary of International and US Law Prohibiting Torture and Other Ill-treatment of Persons in Custody, May 24, 2004, http://www.hrw.org/english/docs/2004/05/24/usint8614.htm. This view is shared by the ICRC and other international observers. See also, for example, “Geneva Convention on Prisoners of War,” International Committee of the Red Cross (ICRC) press release, February 9, 2002, http://www.fmn.dk/SiteCollectionDocuments/FMN/Lokale%20Resurser/Nyt%20og%20Presse/Arkiv/Pressemeddelelser/2006/Redeg%C3%B8relse/Bilag10PressemeddelelsefraInternationaltR%C3%B8deKorsaf_0756368f-1fa6-4177-8858-48c6a94f57d4.pdf (accessed June 24, 2011) (“International Humanitarian Law foresees that the members of armed forces as well as militias associated to them which are captured by the adversary in an international armed conflict are protected by the Third Geneva Convention. There are divergent views between the United States and the ICRC on the procedures which apply on how to determine that the persons detained are not entitled to prisoner of war status.”); Mary Robinson, “Statement of High Commissioner for Human Rights on Detention of Taliban and Al Qaida Prisoners at US Base in Guantanamo Bay,” January 16, 2002, http://www.unhchr.ch/huricane/huricane.nsf/0/C537C6D4657C7928C1256B43003E7D0B?opendocument (accessed June 24, 2011) (“All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949.”); Rumsfeld dismissed the criticism of Bush’s decision as “isolated pockets of international hyperventilation” “High Taliban Official in US Custody,” Associated Press, February 9, 2002, http://www.usatoday.com/news/world/2002/02/08/taliban-surrender.htm (accessed June 17, 2010).

[32] See Michael J. Matheson, “Remarks on the United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions,” reprinted in "The Sixth Annual American Red-Cross Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions," American University Journal of International Law and Policy, vol, 2, no. 2 (Fall1987), p. 427 (“We support in particular the fundamental guarantees contained in article 75 [of Protocol I], such as the principle that all persons who are in the power of a party to a conflict and who do not benefit from more favorable treatment under the [Geneva] Conventions be treated humanely in all circumstances and enjoy, at a minimum, the protections specified in the Conventions” without discrimination.). See also, International Committee of the Red Cross, Customary International Humanitarian Law (Cambridge: Cambridge Univ. Press, 2005), rule 90, citing, for example, US Lieber Code, art. 16 (1863) (“Military necessity does not admit of cruelty--that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.”); Geneva Convention relative to the Treatment of Prisoners of War, http://www1.umn.edu/humanrts/instree/y3gctpw.htm; 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 24, 2011), art. 75; and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force December 7, 1978, http://www1.umn.edu/humanrts/instree/y6pagc.htm (accessed June 24, 2011), art. 4.