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I. A Policy to Evade International Law

In the aftermath of the September 11 attacks on the United States, the Bush administration seemingly determined that winning the war on terror required that the United States circumvent international law. “There was a before-9/11 and an after-9/11,” said Cofer Black, former director of the CIA’s counterterrorist unit, in testimony to Congress. “After 9/11 the gloves came off.”²

The first public manifestation of a policy to circumvent normal detention rules came in January 2002, when the United States began sending persons picked up during the armed conflict in Afghanistan to its naval base at Guantánamo Bay, Cuba. Ultimately Guantánamo would hold more than 700 detainees from forty-four countries, many apprehended far from any conflict zone. Guantánamo was deliberately chosen in an attempt to put the detainees beyond the jurisdiction of the U.S. courts. Indeed, in response to a legal challenge by several detainees, the U.S. government later argued that U.S. courts would not have jurisdiction over these detainees even if they were being tortured or summarily executed.³

Circumventing the Geneva Conventions

Ignoring the deeply rooted U.S. military practice of applying the Geneva Conventions broadly, U.S. Defense Secretary Donald H. Rumsfeld labeled the first detainees to arrive at Guantánamo on January 11, 2002 as “unlawful combatants,” automatically denying them possible status as prisoners of war (POWs). “Unlawful combatants do not have any rights under the Geneva Convention,” Mr. Rumsfeldsaid, overlooking that the Geneva Conventions provide explicit protections to all persons captured in an international armed conflict, even if they are not entitled to POW status. Rumsfeld signaled a casual approach to U.S. compliance with international law by saying that 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.”⁴ On February 7, Rumsfeld questioned the relevance of the Geneva Conventions to current U.S. military operations: “The reality is the set of facts that exist today with the al-Qaeda and the Taliban were not necessarily the set of facts that were considered when the Geneva Convention was fashioned.”⁵

At the same time, a series of legal memoranda written in late 2001 and early 2002 by the Justice Department helped build the framework for circumventing international law restraints on prisoner interrogation. These memos argued that the Geneva Conventions did not apply to detainees from the Afghanistan war.

Alberto R. Gonzales, the White House counsel, in a January 25, 2002 memorandum to President Bush, endorsed the Justice Department’s (and Rumsfeld’s) approach and urged the president to declare the Taliban forces in Afghanistan as well as al-Qaeda outside the coverage of the Geneva Conventions. This, he said, would preserve the U.S.’s “flexibility” in the war against terrorism. Mr. Gonzales wrote that the war against terrorism, “in my judgment renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” Gonzales also warned that U.S. officials involved in harsh interrogation techniques could potentially be prosecuted for war crimes under U.S. law if the Conventions applied.⁶ Gonzales said that “it was difficult to predict with confidence” how prosecutors might apply the Geneva Conventions’ strictures against “outrages against personal dignity” and “inhuman treatment” in the future, and argued that declaring that Taliban and al-Qaeda fighters did not have Geneva Convention protections  “substantially reduces the threat of domestic criminal prosecution.”⁷

Gonzales did convey to President Bush the worries of military leaders that these policies might “undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat and could introduce an element of uncertainty in the status of adversaries.”⁸

The Gonzales memorandum drew a strong objection the next day from Secretary of State Colin L. Powell. Powell argued that declaring the conventions inapplicable would “reverse over a century of U.S. 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.”⁹

On February 7, 2002, in the face of growing international criticism,¹⁰ President Bush announced that the U.S. government would apply the “principles of the Third Geneva Convention” to captured members of the Taliban, but would not consider any of them to be POWs because, in the U.S. view, they did not meet the requirements of an armed force under that Convention. As for captured members of al-Qaeda, he said that the U.S. government considered the Geneva Conventions inapplicable but would nonetheless treat the detainees “humanely.”

These decisions essentially reinterpreted the Geneva Conventions to suit the administration’s purposes. 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 still provide explicit protections to all persons held in an international armed conflict, even if they are not entitled to POW status. Such protections include the right to be free from coercive interrogation, to receive a fair trial if charged with a criminal offense, and, in the case of detained civilians, to be able to appeal periodically the security rationale for continued detention.

Even after the Abu Ghraib scandal broke, Secretary Rumsfeld continued to take a loose view of the applicability of the Geneva Conventions. On May 5, 2004, he told a television interviewer the Geneva Conventions “did not apply precisely” in Iraq but were “basic rules” for handling prisoners.¹¹ Visiting Abu Ghraib on May 14, Rumsfeld remarked, “Geneva doesn’t say what you do when you get up in the morning.” In fact, the U.S. armed forces have devoted considerable energy over the years to making the Geneva Conventions fully operational by military personnel in the field. Various U.S. military operational handbooks and manuals provide the means for implementing Geneva Convention provisions, even where those provisions are vague. Decisions by foreign and international criminal courts and interpretations of customary international law provide other means for clarifying Geneva Convention requirements.

Undermining the Rules Against Torture

All the while, the Bush administration resisted publicly discussing the requirements for the treatment of detainees under international human rights law, in particular the U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (the Convention Against Torture). That convention bars not only torture but “cruel, inhuman or degrading treatment or punishment which do not amount to torture.”¹²

After the first reports of so-called “stress and duress” tactics against detainees appeared in the Washington Post in December 2002,¹³ Human Rights Watch called on President Bush to investigate and condemn allegations of torture and other cruel and inhuman treatment.¹⁴ In response, Department of Defense General Counsel William J. Haynes II stated that “United States policy condemns torture,” but he did not acknowledge that the United States also had a legal obligation to refrain from cruel, inhuman or degrading treatment. He also failed to address whether the United States was using the “stress and duress” techniques reported in the press.¹⁵ In June 2003, Senator Patrick Leahy wrote to National Security Advisor Condoleezza Rice asking if “stress and duress” techniques were being employed and urging the administration to issue a clear statement that cruel, inhuman, or degrading treatment of detainees will not be tolerated. Finally, in June 2003, in response to the Leahy letter, Haynes stated, correctly, that the Convention Against Torture prohibits (at the very least) interrogators overseas from using any technique that would be unconstitutional if employed in the United States.¹⁶ There is no evidence, however, that this message was ever conveyed to U.S. commanders in the field.

Rather, at the same time that the administration was publicly rejecting the use of torture or cruel, inhuman, or degrading treatment, it was apparently laying the legal groundwork for the use of just such tactics. The Washington Post hasreported that in August 2002, the Justice Department advised Gonzales, in response to a CIA request for guidance,  that torturing al- Qaeda detainees in captivity abroad “may be justified,” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted in the war on terrorism.¹⁷ The memo added the doctrines of “necessity and self-defense could provide justifications that would eliminate any criminal liability” on the part of officials who tortured al-Qaeda detainees. The memo also took an extremely narrow view of which acts might constitute torture. It referred to seven practices that U.S. courts have ruled to constitute torture: severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person. It then advised that “interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law.” The memo suggested that “mental torture” only included acts that resulted in “significant psychological harm of significant duration, e.g., lasting for months or even years.”

The legal reasoning of the Justice Department memo re-appeared in an April 2003 memorandum from a working group appointed by Pentagon legal counsel Haynes that was headed by Air Force General Counsel Mary Walker and included senior civilian and uniformed lawyers from each military branch, and which consulted the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency and other intelligence agencies, according to the Wall Street Journal.¹⁸ They contended that the president was not bound by the laws banning torture. According to a draft of the classified memo, the lawyers argued that the president had the authority as commander in chief of the armed forces to approve almost any physical or psychological actions during interrogation, up to and including torture, in order to obtain “intelligence vital to the protection of untold thousands of American citizens.” The memo presented a number of legal doctrines, including the principles of “necessity” and “self-defense,” and the inherent powers of the president which could be used to evade the prohibition on torture.  The memo advised that the president issue a "presidential directive or other writing" that subordinates charged with torture could use as evidence that their actions were authorized, since authority to set aside the laws in wartime is “inherent in the president.”

The Convention Against Torture provides, however, that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”¹⁹ The International Covenant on Civil and Political Rights, which also bans torture and other mistreatment, considers the right to be free from torture and other cruel, inhuman or degrading treatment as nonderogable, meaning that it can never be suspended by a state, including during periods of public emergency.

And, according to media accounts and Human Rights Watch interviews, senior officials in the Defense and Justice Departments and the Central Intelligence Agency approved a set of coercive interrogation techniques for use in Afghanistan and Iraq that violate the prohibition of cruel, inhuman, or degrading treatment and can amount to torture.²⁰ These techniques apparently include stripping detainees naked during interrogation, subjecting them to extremes of heat, cold, noise, and light, hooding them, depriving them of sleep, and keeping them in painful positions.²¹

The New York Times, citing current and former counterterrorism officials, reported that in one case CIA interrogators used graduated levels of force against Khalid Sheikh Mohammed, a detainee held in an “undisclosed location” (see infra), including a technique known as “water boarding,” in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown. According to the Times, “these techniques were authorized by a set of secret rules for the interrogation of some 12 to 20 high-level al-Qaeda prisoners that were endorsed by the Justice Department and the CIA.”²²

Renditions

The Bush administration facilitated or participated directly in the transfer of an unknown number of persons without extradition proceedings, a practice known as “irregular rendition,” to countries in the Middle East known to practice torture routinely. The Washington Post in December 2002 described the rendition of captured al-Qaeda suspects from U.S. custody to other countries, such as Syria, Uzbekistan, Pakistan, Egypt, Jordan, Saudi Arabia, and Morocco, where they were tortured or otherwise mistreated. Unnamed U.S. officials suggested that detainees were deliberately moved to countries known for their use of torture to ease constraints on their interrogations. 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.” An official who had supervised the capture and transfer of accused terrorists said “If you don’t violate someone’s human rights some of the time, you probably aren’t doing your job…I don’t think we want to be promoting a view of zero tolerance on this.” ²³

Tarek Dergoul, a Briton released from Guantánamo in March 2004, said that during interrogation there he was threatened with being sent to Morocco or Egypt, “where I would be tortured.”

In one case, Maher Arar, a Syrian-born Canadian in transit from a family vacation through John F. Kennedy airport in New York, was detained by U.S. authorities. After holding him for nearly two weeks, U.S. authorities flew him to Jordan, where he was driven across the border and handed over to Syrian authorities, despite his repeated statements to U.S. officials that he would be tortured in Syria and his repeated requests to be sent home to Canada. Mr. Arar, whom the United States asserts has links to al-Qaeda, was released without charge from Syrian custody ten months later and has described repeated torture, often with cables and electrical cords, during his confinement in a Syrian prison.

In another case, Swedish television reported in May 2004 that in December 2001 a U.S. government-leased Gulfstream 5 jet airplane transported two Egyptian terrorism suspects who were blindfolded, hooded, drugged, and diapered by hooded operatives, from Sweden to Egypt. There the two men were tortured, including in Cairo’s notorious Tora prison.²⁴ The plane was apparently the same one that had allegedly been used two months earlier to transport a Yemini suspect from Pakistan to Jordan.

In a third case, U.S. operatives reportedly managed the capture and transfer of Mohammed Haydar Zammar, a top al-Qaeda suspect and dual German-Syrian national, to Syria in June 2002, over the protests of the German government. The United States has reportedly provided questions to Syrian interrogators.²⁵

“Disappearances”

Among the most disturbing cases, perhaps unprecedented in U.S. history, are the detainees who have simply been “disappeared.”²⁶ Perhaps out of concern that Guantánamo will eventually be monitored by the U.S. courts, certainly to ensure even greater secrecy, the Bush administration does not appear to hold its most sensitive and high-profile detainees there. Terrorism suspects like Khalid Sheikh Mohammed, accused architect of the September 11 attacks, and Abu Zubaydah, a close aide of Osama bin Laden, are detained by the United States instead in “undisclosed locations,” presumably outside the United States, with no access to the ICRC, no notification to families, no oversight of any sort of their treatment, and in most cases no acknowledgement that they are even being held.  Human Rights Watch has pieced together information on 13 such detainees, apprehended in places such as Pakistan, Indonesia, Thailand, Morocco, and the United Arab Emirates, who have “disappeared” in U.S. custody. ²⁷