In his September 6, 2006 speech, President Bush stated that the CIAs detention and interrogation program had been subject to multiple legal reviews by the Department of Justice and CIA lawyers, and had received strict oversight by the CIAs Inspector General. But if the CIA program passed scrutiny, as the President suggested, then that raises serious questions about the legal review provided by the responsible government agencies on matters of national and international consequence. By international human right or humanitarian law standards, the CIA program was illegal to its core.
In secretly detaining and abusing prisoners like Marwan Jabour, the US government violated a host of fundamental human rights norms. Enforced disappearanceencompassing arbitrary, secret and incommunicado detentionand torture and other cruel, inhuman and degrading treatment are all prohibited under international human rights law.
The International Convention for the Protection of All Persons from Enforced Disappearance (the Convention on Enforced Disappearance) defines enforced disappearance as:
Although the newly adopted convention has yet to enter into force, its definition of enforced disappearance is consistent with definitions contained in a number of earlier international instruments.60
When the Convention on Enforced Disappearance was opened for signature on February 6, 2007, 57 countries signed immediately. Yet, although it had actively participated in the drafting of the convention, the United States was not among the signatories. State Department spokesman Sean McCormack said that the United States had not signed because the convention as adopted was not one that met our needs and expectations, but he did not further elaborate.61
International law bans disappearances in all circumstances. The Convention on Enforced Disappearance states that, No exceptional circumstances whatsoever, whether a state of war or a threat of war . . . or any other public emergency, may be invoked as a justification for enforced disappearance. The convention bars secret detention and requires states parties to hold all detainees in officially recognized places of detention, maintain detailed official records of all detainees, authorize detainees to communicate with their families and legal counsel, and give competent authorities access to detainees.
The practice of enforced disappearance constitutes a grave threat to a number of human rights, including the right to life, the prohibition on torture and cruel, inhuman, and degrading treatment, the right to liberty and security of the person, and the right to a fair and public trial.62 The UN Working Group on Enforced Disappearances has long recognized that the crime of enforced disappearance is a continuous crime until the fate or whereabouts of the disappeared person becomes known.63 Therefore, persons disappeared in US custody who have since been transferred elsewhere remain the legal obligation of the United States so long as their fate or whereabouts remain unknown.
Moreover, enforced disappearance not only violates the basic rights of the disappeared person, it inflicts severe mental pain and suffering on members of that persons family.64 Besides harming Jabour himself, his secret detention meant that his three children were left not knowing whether they still had a father, and his wife not knowing whether she still had a husband. This uncertainty compounds the impact of the loss.
Notably, the UN Working Group on Arbitrary Detention has expressed grave concern about the US governments use of secret prisons to hold suspected terrorists, concluding that detention under such conditions is a serious denial of [the detainees] basic human rights and is incompatible with both international humanitarian law and human rights law.65
To help guarantee their protection from abuse, detainees should be held in officially recognized places of detention. The prisoners names and the place of their detention, as well as the names of the persons responsible for their detention, should be kept in registers readily available and accessible to concerned persons, including relatives and friends. In addition, accurate information on [the prisoners] custody and whereabouts, including transfers, [should be] made promptly available to their relatives and lawyers or other persons of confidence.66 Finally, the time and place of all interrogations should be recorded, together with the names of all those present, and this information should be available for purposes of judicial or administrative proceedings.67
International law also bars incommunicado detention, even when it does not constitute disappearance.68 And according to the Restatement (Third) of Foreign Relations Law of the United States, a state violates international law if, as a matter of state policy, it practices, encourages, or condones prolonged arbitrary detention.69
International human rights law prohibits torture and other mistreatment of persons in custody in all circumstances, during wartime as well as peacetime. Among the relevant treaties are the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), both of which the United States has ratified.
International humanitarian law (the laws of war) also prohibits torture and coerced interrogations at all times during armed conflict. This prohibition, which is found in the Geneva Conventions70 as well as customary laws of war,71 is reflected in US military field manuals and training manuals.72
On December 2, 2002, Secretary of Defense Donald Rumsfeld approved 16 methods for use in interrogations at Guantánamo Bay, including stress positions, hooding, isolation, stripping, deprivation of light, removal of religious items, forced grooming (shaving of facial hair), and use of dogs. On January 15, 2003, following criticism from the Navy general counsel, Rumsfeld rescinded the December 2 guidelines, stating that the harsher techniques in those guidelines could be used only with his approval. Rumsfeld then established a working group to examine which interrogation techniques should be allowed for prisoners in Guantánamo. This study led to Rumsfelds promulgation, on April 16, 2003, of a memo outlining techniques that could only be applied to interrogations of unlawful combatants held at Guantánamo. Stress positions, stripping and the use of dogs were no longer authorized.73
These interrogation techniques migrated in the words of the Schlesinger reportto Iraq and Afghanistan, where they were regularly applied by US personnel to detainees.74 After the Abu Ghraib photos were made public in April 2004, the Bush administration repudiated and eventually replaced the August 1, 2002 Department of Justice memo that had provided the legal rationale for the approved interrogation methods.
Nevertheless, such restrictions on interrogation methods apparently did not apply to the CIA. The Bush administration and the Justice Department reportedly gave the CIA the authority to use additional techniques, including waterboarding (mock drowning).75 In January 2005, Attorney General-designate Alberto Gonzales claimed in a written response during confirmation hearings that the international legal prohibition on cruel, inhuman or degrading (CID) treatment did not apply to US personnel in the treatment of non-citizens abroad, indicating that no law would prohibit the CIA from engaging in CID treatment when it interrogates non-Americans outside the United States.
In December 2005 Congress enactedover the Bush administrations objectionsthe Detainee Treatment Act, which included the McCain amendment that prohibits the use of cruel, inhuman, or degrading treatment by any US official operating anywhere in the world. And in June 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that the US government was required to treat al Qaeda detainees humanely in accordance with the provisions of Common Article 3 to the Geneva Conventions.
The Defense Department then ordered the military to ensure that all its practices complied with these standards and announced new rules repudiating many abusive interrogation methods, including waterboarding, painful stress positions, and prolonged sleep deprivation or exposure to cold. However, the Bush administration simultaneously proposed legislation effectively rewriting the humane treatment standards of Common Article 3 to permit the CIA to continue using the abusive interrogation techniques now banned by the Pentagon. Congress ultimately rejected the administrations proposal, but with mixed results. In the Military Commissions Act of 2006, Congress retained most of the War Crimes Act of 1996, which exposes interrogators to criminal prosecution for torture and cruel and inhuman treatment (defined as conduct that causes serious physical or mental pain or suffering). However, the law narrowed prosecutable offenses under the War Crimes Act by creating a higher threshold for inflicting serious physical pain or suffering, preventing prosecution of interrogators for non-prolonged mental abuse occurring prior to the new law.
Notably, even though the US authorities have claimed that detainees in CIA custody were treated in accordance with the law, they have been taking aggressive steps to ensure that the details of their treatment are not disclosed. The government has, to date, barred legal access to Majid Khan, one of the 14 detainees transferred to Guantanamo last September, claiming that because he was previously in CIA custody he may have come into possession of [classified] information, including locations of detention, conditions of detention, and alternative interrogation techniques.76 Similarly, the Military Commissions Act of 2006 and its Rules of Evidence and Procedure contain a number of provisions meant to protect the CIAs methods and activities from disclosure: methods and activities that are known to include disappearance, torture, and other abuses.
59 International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the U.N. General Assembly on December 20, 2006, opened for signature on February 6, 2007, art. 2. The treaty will enter into force 30 days after 20 states have ratified it.
60 See Report Submitted by Mr. Manfred Nowak, Independent Expert Charged with Examining the Existing International Criminal and Human Rights Framework for the Protection of Persons from Enforced or Involuntary Disappearances, pursuant to Paragraph 11 of Commission Resolution 2001/46 (Geneva: United Nations, 2002) E/CN.4/2002/71. For example, the Declaration on the Protection of all Persons from Enforced Disappearance, adopted by the U.N. General Assembly in 1992, states that enforced disappearances occur when:
61 US State Department, Daily Press Briefing, February 6, 2007.
62 See International Covenant on Civil and Political Rights, articles 6(1), 7, 9, and 14(1). For a detailed discussion of the human rights violations committed by disappearances, see United Nations Commission on Human Rights, Report submitted January 8, 2002, by Mr. Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance, pursuant to paragraph 11 of Commission resolution 2001/46, E/CN.4/2002/71, p. 36.
63 See, for example, Report of the Working Group on Enforced or Involuntary Disappearances, Commission on Human Rights, E/CN.4/2006/56, December 27, 2005, para. 10.
64 For this reason, the Human Rights Committee, the U.N. body charged with monitoring the implementation of the International Covenant on Civil and Political Rights (ICCPR), has found that enforced disappearances violate article 7 of the ICCPR, which prohibits torture and cruel, inhuman or degrading treatment or punishment. See Elena Quinteros Almeida v. Uruguay, Communication No. 107/1981, para. 14 (July 21, 1983). Similarly, the European Court of Human Rights found that the extreme pain and suffering experienced by the mother of a disappeared person constituted a violation of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits torture and inhuman or degrading treatment. Kurt v. Turkey, Judgment, Eur. Ct. Hum. Rts, Case No. 15/1997/799/1002, para. 134 (May 25, 1998).
65 Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2006/7, December 12, 2005.
66 Principle 6 of the U.N. Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.
67 ICCPR General Comment 20 (Forty-fourth Session, 1992): Article 7: Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment, A/47/40 (1992) 193, para. 11.
68 ICCPR General Comment 20 (Forty-fourth Session, 1992): Article 7: Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment, A/47/40 (1992) 193, para. 11.
69 Restatement (Third) of Foreign Relations Law, § 702, comment a.
70 See, for example, Common Article 3 to the Geneva Conventions of 1949.
71 See International Committee of the Red Cross, Customary International Humanitarian Law, (Cambridge: Cambridge Univ. Press, 2005), rule 90.
72 See, for example, US Army Field Manual 27-10, Law of Land Warfare (1956), secs. 11 and 502.
73 See generally, Human Rights Watch, Getting Away with Torture?, vol. 17, no. 1(G), pp. 11-13.
74 James R. Schlesinger, Harold Brown, Tillie K. Fowler, Gen. Charles A. Homer, and Dr. James A. Blackwell, Jr., Final Report of the Independent Panel to Review DoD Detention Operations (Schlesinger report), August 2004, p. 7.
75 Dana Priest, CIA Puts Harsh Tactics on Hold, The Washington Post, June 27, 2004; James Risen, David Johnston and Neil A. Lewis, Harsh CIA Methods Cited in Top Qaeda Interrogations, The New York Times, May 13, 2004.
76 In other words, the government is claiming that because Khan was held in a secret detention center, and alternative interrogation techniques were used on him, he should be barred from telling his lawyer about his experiences.