Background Briefing

Interrogation Policy, Geneva Conventions, and the War Crimes Act

14. How does the MCA change the War Crimes Act? 

The War Crimes Act makes certain violations of the laws of war felonies if they were committed against or by a U.S. citizen. The act was intended to be used to prosecute enemies of the U.S. who abused U.S. troops. Enacted in 1996, it was amended a year later to ensure that it covered non-international as well as international armed conflicts. The sponsors wanted to be sure that warlords in Somalia or other actors in non-international armed conflicts could be held accountable for abuse of U.S. troops. To date, no one has ever been prosecuted under the War Crimes Act. 

Among U.S. personnel, CIA operatives, civilian officials, and civilian contractors responsible for abuses are most vulnerable to prosecution under the War Crimes Act.  Members of the armed forces responsible for abuses face prosecution in courts-martial under the Uniform Code of Military Justice.

As discussed below, the legislation narrows the scope of the War Crimes Act, decriminalizing certain acts that were previously considered criminal offenses.

15. Are the CIA’s most abusive “enhanced” interrogation techniques still criminal under this legislation?

The primary Senate authors of the legislation have stated that the CIA’s most abusive “enhanced” interrogation techniques are criminalized under the MCA. 

The MCA specifies nine offenses that it defines as “grave breaches” of Common Article 3 that can be prosecuted as war crimes. Besides torture, the list includes “cruel and inhuman treatment,” defined as conduct that causes serious or physical mental pain or suffering. The legislation unfortunately defines serious physical pain or suffering as existing only where there is “extreme” pain or other extreme injuries: substantial risk of death, burn or serious physical disfigurement, or significant impairment of a body part, organ or mental faculty. However, the MCA improves upon previous U.S. law by specifying that the infliction of mental pain need not be prolonged to be unlawful, at least with regard to future conduct.

This definition of “cruel and inhuman treatment” responds to the administration’s claim that some of the “enhanced” interrogation techniques allegedly approved in the past – techniques like extended sleep deprivation, exposure to extreme cold, and waterboarding (mock drowning) were not cruel and inhuman because they did not cause “prolonged” suffering. While the administration may argue that such techniques are still allowed, Senators John McCain and John Warner, two of the MCA’s primary authors, have stated that the legislation is specifically designed to criminalize these and other abusive interrogation practices allegedly used by the United States.4 Such methods violate the international law prohibitions against cruel and inhuman treatment, and may amount to torture.

16. Does the MCA immunize U.S. personnel (including CIA personnel) from prosecution for past abuses?

To a large extent, yes. As amended in 1997, the War Crimes Act criminalized all violations of Common Article 3 of the Geneva Conventions, as well as grave breaches of the Geneva Conventions. Anyone responsible for the cruel, humiliating or degrading treatment of detainees captured during a non-international armed conflict could be prosecuted under the law. The MCA revises this portion of the War Crimes Act, replacing the blanket criminalization of Common Article 3 violations with a list of “grave breaches” of Common Article 3, which are specified and defined in the legislation. While torture and cruel and inhuman treatment qualify as “grave breaches,” degrading and humiliating treatment do not. The MCA also eliminates as a war crime the passing of sentences by a court that does not meet international fair trial standards.

The legislation also includes two separate definitions of cruel and inhuman treatment, one that applies to abuses that occurred prior to the passage of the MCA and another that applies to futureconduct. Whereas any non-fleeting mental pain or suffering is defined as cruel and inhuman treatment if committed after the passage of the MCA, the pain must be “prolonged” to qualify as cruel and inhuman treatment prior to the passage of the act. This may immunize from prosecution those officials and interrogators who have authorized or carried out abusive interrogation techniques – such as waterboarding and extended sleep deprivation – that cause time-limited but severe mental anguish.

17. Does the legislation authorize torture or other abusive interrogation practices?

No. The legislation does not authorize the use of torture or abusive interrogation practices. However, it narrows the definition of prosecutable war crimes under the War Crimes Act and makes it much more difficult for detainees to obtain relief from such abuses in court.

The United States, including all U.S. officials, remains bound by international law and the international treaties it has ratified – including the Geneva Conventions, the International Covenant on Civil and Political Rights, and the Convention against Torture – not to engage in torture or practices that amount to cruel, inhuman, and degrading treatment. In addition, the Detainee Treatment Act of 2005, which prohibits the use of cruel, inhuman, or degrading treatment, remains binding on all U.S. personnel operating anywhere in the world. In fact, the legislation explicitly states that the list of “grave breaches” of Common Article 3 does not represent the “full scope of U.S. obligations under that Article.” 

18. The legislation gives the president the authority to interpret the “meaning and application” of the Geneva Conventions.  What does this provision mean?

This provision is arguably just a restatement of the president’s existing interpretative powers under the Constitution. As the head of the executive branch, the president is charged with implementing U.S. legal obligations, including U.S. treaty obligations. The legislation makes clear that the president’s interpretation carries no more weight than any other executive branch regulation, and can be overturned by a court.

Of concern, however, this provision appears to endorse President Bush’s view that he has the authority to interpret and redefine the terms of the Geneva Conventions.  The additional provisions that preclude any person from invoking the Geneva Conventions as a source of rights in an action against any U.S. official will make it difficult, if not impossible, for individuals to challenge presidential interpretations of the Conventions.

The legislation does require the president to publish these interpretations in the Federal Register. Assuming that the president takes this obligation seriously – and issues detailed interpretations – this will provide much-needed transparency regarding how the U.S. interprets and plans to implement its international treaty obligations. 

4 Senator Warner of Virginia speaking for the Military Commissions Act of 2006, on September 28, 2006, to the United States Senate, S. 3930, 109th Cong., 2nd sess,. Congressional Record pt. 10390. Bob Schieffer, Face the Nation with Senator John McCain, CBS News, September 24, 2006.