Problem I: Protecting Political and Civil Rights: Israel ’s Use of “Moderate Physical Pressure”

Notes and Questions (Page 453-54)

7. In June 2007, one year after it was formed, the Council established a Universal Periodic Review to assess the human rights situation in all UN member states. With some changes, the Council also renewed the mandate of most of the Commission’s thematic and country rapporteurs, and established a new complaints procedure “to address consistent patterns of gross and reliably attested violations of human rights.” Like its predecessor, however, the Council has been accused of an undue focus on Israel, inclusion in its membership of states with poor human rights records, and a willingness to ignore serious human rights violations in countries with allies on the Council. Bloc voting by regional groups has generated particular concern. Human Rights First, for example, contends that “the African and Asian groups in the Council, which together constitute a majority of the Council’s 47 members, have pursued a concerted effort to undermine the independence and effectiveness of the U.N.’s human rights machinery.” In a particularly controversial action, the Council in March 2009 adopted a resolution proposed by Pakistan on behalf of the Organization of the Islamic Conference declaring “defamation of religion” to be a human rights violation. The vote was 21-10, with 14 abstentions; most of the western states on the Council voted against the resolution.

     Under the Bush Administration, the United States declined to seek a seat on the Council, and in June 2008, the United States discontinued its observer status. The Obama Administration decided to seek a seat on the Council and in May 2009 the United States was elected by the UN General Assembly to membership in the Council.

C. Applying the Law on Torture to “Moderate Physical Pressure”

Notes and Questions (Page 462)

4. The Public Committee Against Torture has identified the defense of necessity as the Israeli government’s way to circumvent the High Court’s ruling:

The precedent setting High Court of Justice ruling of September 1999 which prohibited the use of several forms of torture, left significant gaps that have allowed for the perpetuation of torture and ill-treatment in GSS interrogations. The primary opening is the "necessity defense" which, under certain circumstances, exempts interrogators who employ illegal interrogation techniques, including physical violence, from criminal responsibility.

When an interrogee complains of torture, the Attorney General orders an initial investigation of the complaint to clarify whether the case fits the "necessity defense" which exempts the interrogator of responsibility. As of now, initial internal investigations have prevented thorough, independent investigations of all the complaints PCATI has submitted on behalf of interrogees.

Sworn affidavits of Palestinians who underwent interrogation since the above ruling reveal that the license given by the Court to GSS interrogators to employ their independent discretion in certain cases has allowed them to continue employing violent methods of interrogation.

The GSS and its high ranking officials have not succeeded in renouncing the concept that the most effective way to obtain confessions or information is through psychological and physical suffering, exhaustion and degradation. As a result, the protection the High Court of Justice wanted to grant Palestinian interrogees has been rendered ineffective.

http://www.stoptorture.org.il/en/skira1999-present, PCAT and two other Israeli human rights groups filed suit seeking to hold the Israeli government and the GSS in contempt of court for failing to abide by the High Court’s 1999 ruling. However, the High Court ruled in July 2009 that a contempt motion was not the appropriate procedure for clarification of a “declarative” ruling.

In May 2009, the Committee Against Torture, in its concluding observations on Israel’s fourth period report under the Convention Against Torture, observed:

Defense of ‘Necessity’

14. Notwithstanding the State party’s assurances that following the Supreme Court’s decision in H.C.J. 5100/94, Public Committee against Torture in Israel v. The State of Israel determined that the prohibition on the use of ‘brutal or inhuman means’ is absolute, and its affirmation that ‘necessity defense’ is not a source of authority for an interrogator’s use of physical means, the Committee remains concerned that the ‘necessity defense’ exception may still arise in cases of ‘ticking bombs,’ i.e., interrogation of terrorist suspects or persons otherwise holding information about potential terrorist attacks. The Committee further notes with concern that, under Section 18 of the Israel Security Agency Law 5762-2002, “an ISA employee (…) shall not bear criminal or civil responsibility for any act or omission performed in good faith and reasonably by him within the scope and in performance of his function”. Although the State party reported that Section 18 has not been applied to a single case, the Committee is concerned that ISA interrogators who use physical pressure in “ticking bomb” cases may not be criminally responsible if they resort to the necessity defense argument. According to official data published in July 2002, 90 Palestinian detainees had been interrogated under the “ticking bomb” exception since September 1999.

19. The Committee is concerned that there are numerous, ongoing and consistent allegations of the use of methods by Israeli security officials that were prohibited by the September 1999 ruling of the Israeli Supreme Court, and that are alleged to take place before, during and after interrogations. According to the State party, there were 67 investigations opened by the Inspector for Complaints against ISA interrogators in 2006, and 47 in 2007, but none resulted in criminal charges.

Concluding Observations of the Committee against Torture, CAT/C/ISR/CO/4

14 May 2009.

D. Applying the Law on Torture to Detainees in the “Global War on Terrorism”

In recent months, a series of newly declassified and released U.S. government memoranda, reports, and related materials have shed new light on the evolution of U.S. detainee interrogation practices and policies.

     1. U.S. Interrogation Methods

Shortly after the September 11, 2001 attacks, senior U.S. officials began to consider how best to obtain actionable intelligence on al Qaeda and its activities. In December 2001, the Department of Defense’s Office of the General Counsel contacted the U.S. Joint Personnel Recovery Agency (JPRA) to seek information on “detainee exploitation.” JPRA oversees the U.S. military’s Survival Evasion Resistance and Escape (SERE) training. The SERE program exposes U.S. military personnel to conditions and techniques they might encounter if captured and subjected to hostile interrogations, in an effort to prepare them to resist such pressures. SERE techniques were modeled in part on methods used by China during the Korean war to elicit false confessions from captured U.S. military personnel. Some of the techniques used in SERE training include stress positions, enforced nakedness, sleep deprivation, isolation, slapping, exposure to extreme temperatures, “walling,” and waterboarding. JPRA provided the Defense Department with a memorandum outlining how SERE techniques might be used to elicit information from prisoners, but warned that physical pressures were less effective than psychological pressures, that information gained from coercive techniques was “less reliable,” and that use of physical deprivations to elicit information has an “intolerable public and political backlash when discovered.” JPRA soon began to provide additional information and briefings on interrogation practices to Defense Department personnel.

     In March 2002, the Central Intelligence Agency (CIA) captured and began to interrogate Abu Zubaydah, the first “high-value detainee.” Zubaydah was a high-ranking member of al Qaeda and a participant in the planning of the September 11 attacks. According to a May 2004 report of the CIA’s Inspector General, Zubaydah’s capture “presented the Agency with a significant dilemma. The Agency was under pressure to do everything possible to prevent additional terrorist attacks. Senior Agency officials believed Abu Zubaydah was withholding information that could not be obtained through then-authorized interrogation techniques. Agency officials believed a more robust approach was necessary to elicit threat information from Abu Zubaydah and possibly from other senior Al-Qa’ida high value detainees.” Accordingly, the CIA sought policy approval from the National Security Council for a new interrogation program aimed at high-value detainees. In particular, the CIA sought to use a set of “enhanced interrogation techniques” (EITs) drawn from a paper prepared by two psychologists associated with the SERE training program. At the same time, the CIA’s Office of General Counsel sought legal advice from the Justice Department’s Office of Legal Counsel (OLC). As set out in subpart 2 below, OLC in several August 2002 memoranda concluded that use of the proposed EITs would be lawful.

     Notwithstanding OLC approval, FBI agents originally tasked with interrogating Zubaydah and others continued to object to the use of techniques they deemed legally questionable and counterproductive. FBI Director Robert Mueller directed FBI agents not to participate in interrogations involving techniques the FBI would not normally use in the United States.

     In September 2002, interrogators and behavioral scientists from the U.S. base at Guantanamo received training at JPRA’s SERE school. Shortly after their return to Guantanamo, the commanding officer of JTF 170 sought permission to use SERE-style coercive techniques at Guantanamo. Asked for comment on the request, all four military branches raised significant concerns. For example, the Chief of the Army’s International and Operational Law Division noted that some of the techniques would “likely constitute maltreatment” under the Uniform Code of Military Justice and “may violate the torture statute.” Captain Jane Dalton, Legal Counsel to the Joint Chiefs of Staff, initiated a legal and policy review but was instructed by Department of Defense General Counsel William Haynes to terminate the review. Haynes (after discussions with senior Defense Department officials) then recommended approval, and Secretary of Defense Rumsfeld approved, most of the requested techniques, as noted in the text at page 463.

     As reports of detainee abuse at Guantanamo and elsewhere began to circulate, some Justice Department and military lawyers raised further concerns. On three occasions in December 2002 and January 2003, Navy General Counsel Alberto Mora advised Defense Department General Counsel Haynes of legal concerns, noting that some of the techniques “could rise to the level of torture.” On January 15, 2003, Mora presented Haynes with a draft memorandum stating that “the majority of the proposed category II and all of the proposed category III techniques were violative of domestic and international legal norms in that they constituted, at a minimum, cruel and unusual treatment and, at worst, torture.” Mora stated that he would sign the memorandum that afternoon if Secretary Rumsfeld’s authorization of coercive techniques was not rescinded. Secretary Rumsfeld rescinded his authorization that afternoon, but simultaneously directed establishment of a Working Group to review the military’s interrogation practices. After developing its own preliminary legal analysis noting that some category III and possibly also some category II techniques might constitute torture, the Working Group was instructed by Defense Department General Counsel Haynes to treat as “controlling authority for all questions of domestic and international law” a March 2003 OLC memorandum. That memorandum reiterated OLC’s view of the Torture Convention and the federal anti-torture statute and declared that U.S. criminal statutes would not apply to the “properly-authorized interrogation of enemy combatants by the United States Armed Forces during an armed conflict.” Shortly thereafter, the Working Group issued a draft report that approved the EITs described in the text. Senior military lawyers in all branches immediately expressed serious legal and policy concerns with the Working Group’s report, warning among other things that use of the approved techniques might violate the Uniform Code of Military Justice, expose U.S. service members to prosecution abroad, invite reciprocal treatment of U.S. POWs, undermine morale, and undercut international support. The Working Group’s final report was issued in April 2003; it excluded waterboarding and several other exceptional techniques from the approved list.

     As U.S. interrogation policy evolved during 2002 and early 2003, the CIA took pains to brief senior Administration officials and the leadership of the Congressional Intelligence Oversight Committees on the Agency’s use of EITs. National Security Advisor Condoleeza Rice, who attended a number of the briefings, asked Attorney General John Ashcroft “personally to review and confirm” the legality of the proposed program. According to the Agency’s General Counsel, none of the participants in the briefings “expressed any concern about the techniques or the Program.”

     According to a 2008 report by the Senate Armed Services Committee, interrogation practices authorized for use in Guantanamo quickly migrated to Afghanistan and then Iraq, where interrogators were under pressure to develop intelligence to combat a growing insurgency. In September 2003, JPRA sent a team to Iraq to assist with interrogations using SERE techniques. Some of those techniques were later incorporated into Standard Operating Procedures issued to U.S. forces in Iraq.

     2. U .S. Interrogation Policy and International Law

     a. Applicability of the Geneva Conventions and the Convention Against Torture

On August 1, 2002, the same day Assistant Attorney General Jay Bybee issued the memorandum on torture described in the text at page 466, he also provided a separate memorandum to CIA Acting General Counsel John Rizzo, in response to the Agency’s request for authorization to use ten specific EITs on Abu Zubaydah. The memorandum stated:

Our advice is based upon the following facts, which you have provided to us. . . . The interrogation team is certain [Zubaydah] has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently a level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an "increased pressure phase.”

     The memorandum goes on to review in detail each proposed interrogation technique, including stress positions, sleep deprivation, “insects placed in a confinement box,” and waterboarding. With regard to waterboarding, Bybee states that

although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. . . . The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.

The memorandum goes on to note that Section 2340 of the federal anti-torture statute defines severe mental pain or suffering as “the prolonged mental harm caused by or resulting from” one of several predicate acts, including “(3) the threat of imminent death.” The memorandum notes that waterboarding “constitutes a threat of imminent death” because the subject does not know of the safety precautions in place and “would feel as if he is drowning.” However, the memorandum concludes:

Based on your research into the use of these methods at the SERE school and consultation with others with expertise in the field of psychology and interrogation, you do not anticipate that any prolonged mental harm would result from the use of the waterboard. Indeed, you have advised us that the relief is almost immediate when the cloth is removed from the nose and mouth, in the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture within the meaning of the statute.

The memorandum adds that interrogators must have a “specific intent” to inflict severe pain or suffering to violate the torture statute, and that a defendant who acts with a good faith belief that his actions will not cause such suffering has not acted with the requisite intent. Good faith, the memorandum continues, can be established by “reliance on the advice of experts.” The memorandum concludes that interrogators using these techniques would not have the requisite specific intent, given the presence of medical personnel and other safety precautions, and the reliance on SERE training experiences to predict consequences of employing the proposed techniques.

     c. U.S. Obligations Under the Torture Convention

     U.S. Report to the Committee Against Torture

On May 6, 2005, the United States submitted its second periodic report to the Committee Against Torture, as required under the Convention Against Torture’s periodic reporting system. The Committee’s conclusions and recommendations may be found here.

     The U.S. report, in Annex I, contains a detailed response to international concerns relating to treatment of individuals “captured during operations against Al-Qaida, the Taliban and their affiliates and supporters,” and “individuals under the control of U.S. Armed Forces in Iraq captured during military operations.”

     In its report, the United States asserted that it “is unequivocally opposed to the use and practice of torture. No circumstance whatsoever, including war, the threat of war, internal political instability, public emergency, or an order from a superior officer or public authority, may be invoked as a justification for or defense to committing torture.” (Para. 6). The United States went on to assert that when allegations of mistreatment of detainees in the “global war on terrorism” arise, they “are investigated and, if substantiated, prosecuted.” (Para. 10).

     Further, in Annex I, the United States insisted that instances of detainee abuse were isolated and independent of any authorized interrogation policy or procedure:

Specifically, in response to specific complaints of abuse in Afghanistan and at Guantanamo Bay, Cuba, the Department of Defense has ordered a number of studies that focused, inter alia , on detainee operations and interrogation methods to determine if there was merit to the complaints of mistreatment.

Although these extensive investigative reports have identified problems and proffered recommendations, none of them found that any governmental policy directed, encouraged or condoned these abuses. . . . 

On March 10, 2005 Vice Admiral Church (the former U.S. Naval Inspector General) released an executive summary of his report, which . . . examined the precise question of “whether DoD had promulgated interrogation policies or guidance that directed, sanctioned or encouraged the abuse of detainees.” . . . In his Report, he wrote that “this was not the case,” id. , finding that “it is clear that none of the approved policies - no matter which version the interrogators followed - would have permitted the types of abuse that occurred.” Id. , at 15. In response to intensive questioning before the U.S. Senate Armed Services Committee as to whether the 2002 DOJ memo or subsequently authorized interrogation practices had contributed to individual soldiers committing abuses, he responded that “clearly there was no policy, written or otherwise, at any level, that directed or condoned torture or abuse; there was no link between the authorized interrogation techniques and the abuses that, in fact, occurred.” Transcript at 7. Although Vice Admiral Church’s investigation is the most comprehensive to date on this issue, it was consistent with the findings of earlier investigations on this point. CAT/C/48/Add. 3 at 62-63.

Annex I goes on to state that despite the conduct of over 24,000 interrogation sessions since the start of operations at Guantanamo, military investigations yielded evidence substantiating abuses in only 10 incidents; in each case, those responsible were punished. Investigations substantiated only 22 instances of misconduct in Afghanistan. Annex I acknowledges blatant violations of the laws of war in Iraq, involving 54 military personnel, in connection with treatment of prisoners at Abu Ghraib, but states that none of the reports investigating such abuses “found a governmental policy directing, encouraging, or condoning the abuses that occurred.” Annex I adds that “the vast majority of the 150,000 military personnel who that have been stationed in Iraq have conducted themselves honorably.” Finally, Annex I lists a series of steps taken to prevent future abuses, including creation of a new Detainee Affairs office in the Department of Defense and new policies and procedures for handling complaints and investigations.

     A contrasting view of the connection between U.S. interrogation policies and detainee abuse at Abu Ghraib appears in the Senate Armed Services Committee Report on Inquiry into the Treatment of Detainees in U .S. Custody (2008). That report concludes:

Conclusion 19: The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at GTMO. Secretary of Defense Donald Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody. What followed was an erosion in standards dictating that detainees be treated humanely.

With regard to allegations of illegal renditions, the U.S. report to the Committee Against Torture states:

The United States does not transfer persons to countries where the United States believes it is “more likely than not” that they will be tortured. . . . The United States obtains assurances, as appropriate, from the foreign government to which a detainee is transferred that it will not torture the individual being transferred. If assurances were not considered sufficient when balanced against treatment concerns, the United States would not transfer the person to the control of that government unless the concerns were satisfactorily resolved. (Para. 30).

     In February 2006, the Committee against Torture provided the United States with a list of issues to be considered during the examination of the U.S. second periodic report. The United States supplied a 185 page response, and in May 2006, some two dozen U.S. officials, led by State Department Legal Adviser John Bellinger, met with Committee members to review the U.S. report. In his opening remarks, Bellinger stressed the “absolute commitment” of the United States to upholding relevant U.S. and international law, and the importance of keeping “a sense of proportion and perspective” on incidents of abuse, which “are not systemic.”

     Bellinger also explained the U.S. view regarding the law applicable to detention operations:

It is the view of the United States that these detention operations are governed by the law of armed conflict, which is the lex specialis applicable to those operations.

As a general matter, countries negotiating the Convention were principally focused on dealing with rights to be afforded to people through the operation of ordinary domestic legal processes and were not attempting to craft rules that would govern armed conflict.

At the conclusion of the negotiation of the Convention, the United States made clear “that the convention . . . was never intended to apply to armed conflicts. . .  .”   The United States emphasized that having the Convention apply to armed conflicts “would result in an overlap of the different treaties which would undermine the objective of eradicating torture.”  No country objected to this understanding.

In any case, regardless of the legal analysis, torture is clearly and categorically prohibited under both human rights treaties and the law of armed conflict.  The obligation to prevent cruel, inhuman, or degrading treatment or punishment is in Article 16 of the Convention and in similar provisions in the law of armed conflict.

On July 25, 2006, the Committee Against Torture published its conclusions and recommendations: Among other things, the Committee:

• Expressed regret at the U.S. view that the Convention did not apply in the context of armed conflict and urged the United States to “ensure that the Convention applies at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction.”
• Regretted the U.S. view that key Convention provisions are geographically limited to a state’s own de jure territory, and noted “its previously expressed view” that under the Convention, the territory under a state’s jurisdiction “includes all areas under the de facto effective control of the State party, by whichever military or civil authorities such control is exercised.”
• Urged the United States “to ensure that no one is detained in any secret detention facility under its de facto control,” and regretted “the ‘no comment’ policy of the State party regarding the existence of such secret detention facilities, as well as on its intelligence activities.”
• Expressed concern at U.S. “rendition of suspects, without any judicial procedure, to States where they face a real risk of torture (art. 3),” and urged the U.S. to provide all suspects “the possibility to challenge decisions of refoulement. ”
• Urged the United States to avoid exclusive reliance on “diplomatic assurances” when making rendition decisions, and to provide judicial review and effective post-rendition monitoring arrangements.
• Noted “that detaining persons indefinitely without charge constitutes per se a violation of the Convention,” expressed concern “that detainees are held for protracted periods at Guantánamo Bay, without sufficient legal safeguards and without judicial assessment of the justification for their detention (arts. 2, 3 and 16),” and urged the U.S. to close the Guantanamo Bay facility.
• Expressed concern at “the use of certain interrogation techniques that have resulted in the death of some detainees during interrogation,” and urged the United States to “rescind any interrogation technique, including methods involving sexual humiliation, “waterboarding”, “short shackling” and using dogs to induce fear, that constitutes torture or cruel, inhuman or degrading treatment or punishment.”
• Expressed concern at “reliable reports of acts of torture or cruel, inhuman and degrading treatment or punishment committed by certain members of the State party’s military or civilian personnel in Afghanistan and Iraq,” and at “lenient sentences” given in such cases, “including of an administrative nature or less than one year’s imprisonment.”
• Expressed concern “that the Detainee Treatment Act of 2005 aims to withdraw the jurisdiction of the State party’s federal courts with respect to habeas corpus petitions, or other claims by or on behalf of Guantánamo Bay detainees, except under limited circumstances.”

U.S. Report to the Human Rights Committee    

     In July 2006, the Human Rights Committee considered the combined second and third periodic reports of the United States, submitted under article 40 of the ICCPR. The Committee noted that the U.S. report was seven years overdue, and raised a number of concerns. Among other things, the Committee urged reconsideration of the U.S. “position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, nor in time of war” and criticized “the practice of detaining people secretly and in secret places for months and years on end.” Regarding U.S. interrogation practices, the Committee stated:

13. The Committee is concerned with the fact that the State party has authorized for some time the use of enhanced interrogation techniques, such as prolonged stress positions and isolation, sensory deprivation, hooding, exposure to cold or heat, sleep and dietary adjustments, 20-hour interrogations, removal of clothing and deprivation of all comfort and religious items, forced grooming, and exploitation of detainees’ individual phobias. Although the Committee welcomes the assurance that, according to the Detainee Treatment Act of 2005, such interrogation techniques are prohibited by the present Army Field Manual on Intelligence Interrogation, the Committee remains concerned that (a) the State party refuses to acknowledge that such techniques, several of which were allegedly applied, either individually or in combination, over a protracted period of time, violate the prohibition contained by article 7 of the Covenant; (b) no sentence has been pronounced against an officer, employee, member of the Armed Forces, or other agent of the United States Government for using harsh interrogation techniques that had been approved; (c) these interrogation techniques may still be authorized or used by other agencies, including intelligence agencies and “private contractors”; and (d) the State party has provided no information to the effect that oversight systems of such agencies have been established to ensure compliance with article 7.

The Committee went on to express concern over the lack of independent investigations into allegations of abuse, provisions in the Detainee Treatment Act barring detainees from seeking judicial review of their treatment, and U.S. rendition practices.

Additional OLC Guidance on EITs

     On May 10, 2005, four days after the United States submitted its Second Periodic Report to the Committee Against Torture, OLC submitted two memoranda to CIA Senior Deputy General Counsel John Rizzo, analyzing the legality under the federal anti-torture statute of 13 EITs aimed at high value detainees. The EITs at issue included dietary manipulation, nudity, slapping, wall standing, stress positions, sleep deprivation, and waterboarding. The first memorandum considered the application of these techniques individually; the second considered their application in combination.

     The first memorandum noted that the techniques “have all been imported from military Survival, Evasion, Resistance, Escape (“SERE”) training, where they have been used for years on U.S. military personnel, although with some significant differences . . . .” The differences included the duration and frequency of application of various techniques and the fact that, unlike detainees, SERE trainees know “that they will not be significantly harmed by the training.” The memorandum spells out the precautions in place to minimize harm to detainees, including the presence of medical personnel, and the detailed and specific limitations placed on application of various techniques, such as the precise water temperatures that may be used when dousing detainees. The memorandum then reiterates the May 2004 legal analysis of torture and concludes that none of the techniques are likely to cause the severe pain and suffering actionable under the statute. With regard to waterboarding, the memorandum acknowledges that a detainee “will experience the physical sensation of drowning,” even if he “knows he is not going to drown.” The memorandum also acknowledges that according to the Office of Medical Services, “the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant,” and that therefore there is no a priori reason to believe that as used it “was either efficacious or medically safe.” Nonetheless, noting that the waterboard had been used on prior detainees and that medical doctors concluded they “did not experience physical pain,” the memorandum concludes that “the authorized use of the waterboard by adequately trained interrogators could not reasonably be considered specifically intended to cause ‘severe physical pain.’” The memorandum goes on to reiterate the conclusion previously reached by OLC that waterboarding does not cause “severe mental pain or suffering” because it does not produce “prolonged mental harm” beyond “the distress that directly accompanies its use and the prospect that it will be used again.” The memorandum acknowledges that its analysis of sleep deprivation and waterboarding “are issues about which reasonable people may disagree.” An accompanying memorandum concludes that although use of the techniques in combination may create exacerbate the effects the techniques have when used individually, “we assume that medical personnel will be aware of these possible interactions and will monitor detainees closely for any signs that such interactions are developing.” The memorandum concludes that “the combination of techniques in question here would not be ‘extreme and outrageous’ and thus would not reach the high bar established by Congress in sections 2340-2340A . . . .”

OLC Guidance on Cruel, Inhuman, or Degrading Treatment

     On May 30, 2005, OLC provided another memorandum to CIA Senior Deputy General Counsel John Rizzo, analyzing the legality of EITs under Article 16 of the Torture Convention. The memorandum first states that Article 16 does not apply extraterritorially:

By its terms, Article 16 is limited to conduct within "territory under [United States] jurlsdiction." We conclude that territory under United States jurlsdiction includes, 'at most, areas over which the United States exercises at least de facto authority as the government. Based on CIA assurances, we understand that the interrogations do not take place in any such areas. We therefore conclude that Article 16 is inapplicable to the CIA's interrogation practices and that those practices thus cannot violate Article 16. Further, the United States undertook its obligations under Article 16 subject to a Senate reservation, which, as relevant here, explicitly limits those obligations to "the cruel, unusual and inhumane treatment ... prohibited by the Fifth Amendment, .. to the Constitution of the United States.’. . . . As construed by the courts, the Fifith Amendment does not apply to aliens outside the United States.”

The memorandum goes on, however, to consider whether EITs would violate the substantive standards of Article 16:

[T]he relevant constraint here, assuming Article 16 did apply, would be the Fifth Amendment's prohibition of executive conduct that "shocks the conscience." The Supreme Court has emphasized that whether conduct "shocks the conscience" is a highly context-specific and fact-dependent question. The Court, however, has not set forth with precision a specific test for ascertaining whether conduct can be said to "shock the conscience" and has disclaimed the ability to do so. . . .

Nevertheless, the Court's "shocks the conscience" cases do provide some signposts that can guide our inquiry. In particular, on balance the cases are best read to require a determination whether the conduct is '''arbitrary in the constitutional sense,''' County of Sacramento v. Lewis, 523 U.S. 833, 846 (l998) (citation omitted); that is, whether it involves the "exercise of power without any reasonable justification in the service of a legitimate governmental objective," id.

Far from being constitutionally arbitrary, the interrogation techniques at issue here are employed by the CIA only as reasonably deemed necessary to protect against grave threats to United States interests, a determination that is made at CIA Headquarters, with input from the on-scene interrogation team pursuant to careful screening procedures that ensure that the techniques will be used as little as possible on as few detainees as possible. Moreover, the techniques have been carefully designed to minimize the risk of suffering or injury and to avoid inflicting any serious or lasting physical or psychological harm. . . . Significantly, you have informed us that the CIA believes that this program is largely responsible for preventing a subsequent attack within the United States. Because the ClA interrogation program is carefully limited to further a vital government interest and designed to avoid unnecessary or serious harm, we conclude that it cannot be said to be constitutionally arbitrary.

The Supreme Court's decisions also suggest that it is appropriate to consider whether, in light of “traditional executive behavior, of contemporary practice, and the standards of blame generally applied to them," use of the techniques in the ClA interrogation program "is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." ld. at 847 n. 8. We have not found evidence of traditional executive behavior or contemporary practice either condemning or condoning an interrogation program carefully limited to further a vital government interest and designed to avoid unnecessary or serious harm. We recognize, however, that use of coercive interrogation techniques in other contexts-in different settings, for other purposes, or absent the CIA's safeguards-might be thought to "shock the conscience."

The memorandum acknowledges that EITs would not be permitted in the domestic law enforcement context and that the Geneva Conventions and the U.S. Army Field Manual prohibit coercive tactics, including food and sleep deprivation. However, the memorandum states that “a policy premised on the applicability of the Geneva Conventions and not purporting to bind the CIA does not constitute controlling evidence of executive tradition and contemporary practice with respect to untraditional armed conflict where those treaties do not apply, where the enemy flagrantly violates the laws of war by secretly attacking civilians, and where the United States cannot identify the enemy or prevent its attacks absent accurate intelligence.” Similarly, the memorandum notes that the State Department regularly condemns in its annual country reports the use of coercive interrogation techniques by other countries, but declares that such reports do not provide enough detail or context to offer evidence that the CIA program shocks the conscience.

Application of Common Article 3 of the Geneva Conventions

     On June 29, 2006, the U.S. Supreme Court decided Hamdan v. Rumsfeld, 126 S. Ct. 2740 (2006). The decision, excerpted in an update to Chapter 14, held (among other things) that the military commissions established to try detainees at Guantanamo were inconsistent with the law of war. Moreover, the Court in Hamdan rejected the U.S. government’s position that the 1949 Geneva Conventions do not apply to the conflict with al Qaeda. Without deciding the extent to which the Conventions might apply, the Court determined that, at a minimum, Common Article 3 of the Conventions does apply. Under the U.S. War Crimes Act, a violation of Common Article 3 constitutes a federal offense.

Common Article 3 provides:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

. . .

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

     The Supreme Court’s decision in Hamdan forced the Bush Administration to reconsider its interrogation policies. On September 6, 2006, President Bush confirmed publicly the existence of secret CIA prisons and announced that the 14 high-value detainees held there would be transferred to Guantanamo Bay. At the same time, the President and Congress engaged in extensive negotiations on procedures for military commissions and related issues, including interrogations and criminal liability of U.S. personnel for war crimes. These negotiations produced the Military Commissions Act of 2006 (“MCA”). The MCA is excerpted in the update to Chapter 14, Part I. Section 6 of the MCA amended the War Crimes Act to specify nine separate offenses that would constitute grave breaches of Common Article 3, including torture and cruel and inhuman treatment. Section 6 also included a separate prohibition on cruel, inhuman, or degrading treatment:

(c) ADDITIONAL PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT

(1) IN GENERAL.—No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(2) CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT DEFINED.—In this subsection, the term ‘‘cruel, inhuman, or degrading treatment or punishment’’ means cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

The MCA also provides that “the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions” through issuance of Executive Orders that “shall be authoritative (except as to grave breaches of common Article 3) as a matter of United States law.” The MCA bars invocation of “the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States” or an agent of the United States is a party “as a source of rights in any court of the United States,” and strips U.S. courts of jurisdiction over any claim against the United States regarding the treatment of aliens detained as enemy combatants.

Following passage of the MCA, the CIA, expecting to detain future high value detainees, sought approval for the use of six EITs, including the “facial hold,” the “attention grasp,” the “abdominal slap,” the “insult (or facial) slap,” dietary manipulation, and extended sleep deprivation. In a lengthy July 20, 2007 memorandum, OLC opined that all six techniques would be consistent with the DTA, the MCA, and Common Article 3. According to the OLC analysis, the MCA was “enacted in no small part on the assumption that it would allow the CIA program to go forward.”

As background to its analysis, OLC stated that the program is aimed at detainees believed to possess “critical intelligence” that cannot be obtained in a timely way without use of EITs, and “only if, in the professional judgment of qualified medical personnel, there are no significant medical or psychological contraindications for their use with that detainee.” OLC stated further that the CIA had applied EITs to 30 of the 98 detainees held by the CIA up to that time. OLC also noted that in advance of the enactment of the MCA, CIA Director Michael Hayden briefed the full membership of the House and Senate Intelligence Committees on CIA interrogation techniques and “none of the Members expressed the view that the CIA interrogation program should be stopped, or that the techniques at issue were inappropriate.” OLC described the purpose of the EITs as follows:

The foundation of the program is the CIA's knowledge of the beliefs and psychological traits of al Qaeda members. Specifically, members of al Qaeda expect that they will be subject to no more than verbal questioning in the hands of the United States, and thus are trained patiently to wait out U.S. interrogators, confident that they can withstand U.S. interrogation techniques. At the same time, al Qaeda operatives believe that they are morally permitted to reveal information once they have reached a certain limit of discomfort. The program is designed to dislodge the detainee's expectations about how he will be treated in U.S. custody, to create a situation in which he feels that he is not in control, and to establish a relationship of dependence on the part of the detainee. Accordingly, the program's intended effect is psychological; it is not intended to extract information through the imposition of physical pain.

     With regard to Common Article 3’s prohibition on violence to life and person, OLC opined:

The proposed techniques do not implicate Common Article 3's general prohibition on "violence to life and person." Dictionaries define the term "violence" as "the exertion of physical force so as to injure or abuse." Webster 's Third Int’l Dictionary at 2554. The surrounding text and structure of paragraph 1(a) make clear that "violence to life and person" does not encompass every use of force or every physical injury. Instead, Common Article 3 provides specific examples of severe conduct covered by that term—murder, mutilation, torture, and cruel treatment.

. . .

While the CIA does on occasion employ limited physical contact, the "slaps" and "holds" that comprise the CIA's proposed corrective techniques are carefully limited in frequency and intensity and subject to important safeguards to avoid the imposition of significant pain. They are designed to gain the attention of the detainee; they do not constitute the type of serious physical force that is implicated by paragraph 1(a).

     On Common Article 3’s prohibition of “outrages upon personal dignity, in particular, humiliating and degrading treatment,” OLC expressed the following view:

     Despite the general nature of its language, there are several indications that paragraph 1(c) was intended to refer to particularly serious conduct. The term "humiliating and degrading treatment" does not stand alone. Instead, the term is a specific type or subset of the somewhat clearer prohibition on "outrages upon personal dignity." This structure distinguishes Common Article 3 from other international treaties that include freestanding prohibitions on "degrading treatment," untethered to any requirement that such treatment constitute an "outrage upon personal dignity." Compare CAT Art. 16 (prohibiting "cruel, inhuman or degrading treatment or punishment which does not amount to torture") with European Convention on Human Rights Article 3 (No one shall be subjected to torture or to inhuman or degrading treatment or punishment."). Thus, paragraph 1(c) does not bar "humiliating and degrading treatment" in the abstract; instead, it prohibits "humiliating and degrading treatment" that rises to the level of an "outrage upon personal dignity." This interpretation has been broadly accepted by international tribunals and committees, as it has been adopted both by the ICC Preparatory Committee and the ICTY. . . .

     The term "outrage" implies a relatively flagrant or heinous form of ill-treatment. Dictionaries define "outrage" as "describ[ing] whatever is so flagrantly bad that one's sense of decency or one's power to suffer or tolerate is violated" and list "monstrous, heinous, [and] ; atrocious" as synonyms of "outrageous." Webster's Third Int'l Dictionary at 1603. In this way the term "outrage" appeals to the common sense standard of a reasonable person's assessing conduct under all the circumstances. And the judgment that term seeks is not a mere opinion that the behavior should have been different—to be an outrage, a reasonable person must assess the conduct as beyond all reasonable bounds of decency. . . .

     The [ICTY] has explained that paragraph 1(c) requires an inquiry not only into whether the conduct is objectively outrageous, but also into whether the purpose of the conduct is purely to humiliate and degrade in a contemptuous and outrageous manner. Thus, the ICTY has looked to the intent of the accused--it is not enough that a person feel "humiliated," rather the conduct must be "animated by contempt for the human dignity of another person." For the Yugoslavia tribunal, paragraph 1 (c) captures a concept of wanton disregard for humanity, of recklessness, or of a wish to humiliate or to degrade for its own sake.

. . .

     [T]he [CIA’s] techniques do not implicate the core principles of the prohibition on "outrages upon personal dignity." A reasonable person, considering all the circumstances, would not consider the conduct so serious as to be beyond the bounds of human decency. The techniques are not intended to humiliate or to degrade; rather, they are carefully limited to the purpose of obtaining critical intelligence. They do not manifest the "scorn for human values" or reflect conduct done for the purpose of humiliating and degrading the detainee—the dark past of World War II, against which paragraph 1(c) was set. As we explain above, a reasonable person would consider the justification for the conduct and the full context of the protective measures put in place by the CIA. Accordingly, the careful limits on the CIA program, the narrow focus of the program, and the critical purpose that the program serves are important to the conclusion that the six techniques do not constitute conduct so serious as to be beyond the bounds of human decency.

     The OLC goes on to conclude that the six techniques also do not violate Article 3’s general requirement of humane treatment:

     Overarching the four specific prohibitions in Common Article 3 is a general requirement that persons protected by Common Article 3 "shall in all circumstances be treated humanely . . . . The text makes clear that its four specific prohibitions are directed at implementing the humane treatment requirement. See GPW Art. 3 ¶ 1 (following the humane treatment requirement with "[t]o this end the following acts are and shall remain prohibited"). As we have discussed above, those specific provisions describe serious conduct, and the structure of Common Article 3 suggests that conduct of a similar gravity would be required to constitute inhumane treatment.

     The question becomes what, if anything, is required by "humane treatment" under Common Article 3 that is not captured by the specific prohibitions in subparagraphs (a)-(d). We can discern some content from references to "humane treatment" in other parts of the Geneva Conventions. For example, other provisions closely link humane treatment with the provision of the basic necessities essential to life. Article 20 of GPW mandates that the "evacuation of prisoners of war shall always be effected humanely.... The Detaining Power shall supply prisoners of war who are being evacuated with sufficient food and potable water, and with the necessary clothing and medical attention." See also GPW Art. 46. This theme runs throughout the Conventions, and indeed Common Article 3 itself requires a subset of such basic necessities, by mandating that the "wounded and sick shall be collected and cared for." GPW Art. 3 ¶ 2. Given these references throughout the Conventions, humane treatment under Common Article 3 is reasonably read to require that detainees in the CIA program be provided with the basic necessities of life—food and water, shelter from the elements, protection from extremes of heat and cold, necessary clothing, and essential medical care, absent emergency circumstances beyond me control of the United States.

     We understand that the CIA takes care to ensure that the detainees receive those basic necessities.

The OLC memorandum goes on to review the United Kingdom’s use of the “five techniques” described earlier in the text and notes the United Kingdom’s view that the techniques were consistent with Common Article 3. The memorandum adds that “Common Article 3 may lend itself to other interpretations, and international bodies or our treaty partners may disagree in some respects with this interpretation.” But, notes the OLC, the MCA permits the President to interpret the Conventions authoritatively for the United States, renders the Conventions judicially unenforceable, and bars the courts from relying on “a foreign or international source of law" to decide the content of the statutory elements in the War Crimes Act.” The OLC concludes that the President’s draft Executive Order interpreting Common Article 3 is “wholly consistent” with OLC’s analysis.

     On July 20, 2007, President Bush issued Executive Order 13440. The order expressly determines that “a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that”:

(i) the conditions of confinement and interrogation practices of the program do not include:

(A) torture, as defined in section 2340 of title 18, United States Code;

(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;

(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;

(D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act . . . ;

(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or

(F) acts intended to denigrate the religion, religious practices, or religious objects of the individual.

Further Views of the Committee Against Torture

     On January 24, 2008, the Committee Against Torture issued General Comment 2 addressing implementation of article 2 of the Torture Convention. General Comment 2 appears to reject some of the reasoning and conclusions contained in the OLC memoranda approving use of EITs:

     II. Absolute prohibition

5. Article 2, paragraph 2, provides that the prohibition against torture is absolute and nonderogable. It emphasizes that no exceptional circumstances whatsoever may be invoked by a State Party to justify acts of torture in any territory under its jurisdiction. The Convention identifies as among such circumstances a state of war or threat thereof, internal political instability or any other public emergency. This includes any threat of terrorist acts or violent crime as well as armed conflict, international or non-international. The Committee is deeply concerned at and rejects absolutely any efforts by States to justify torture and ill-treatment as a means to protect public safety or avert emergencies in these and all other situations. Similarly, it rejects any religious or traditional justification that would violate this absolute prohibition. The Committee considers that amnesties or other impediments which preclude or indicate unwillingness to provide prompt and fair prosecution and punishment of perpetrators of torture or ill-treatment violate the principle of non-derogability.

6. The Committee reminds all States parties to the Convention of the non-derogable nature of the obligations undertaken by them in ratifying the Convention. In the aftermath of the attacks of 11 September 2001, the Committee specified that the obligations in articles 2 (whereby “no exceptional circumstances whatsoever…may be invoked as a justification of torture”), 15 (prohibiting confessions extorted by torture being admitted in evidence, except against the torturer), and 16 (prohibiting cruel, inhuman or degrading treatment or punishment) are three such provisions that “must be observed in all circumstances”. The Committee considers that articles 3 to 15 are likewise obligatory as applied to both torture and ill-treatment. The Committee recognizes that States parties may choose the measures through which they fulfill these obligations, so long as they are effective and consistent with the object and purpose of the Convention.

7. The Committee also understands that the concept of “any territory under its jurisdiction,” linked as it is with the principle of non-derogability, includes any territory or facilities and must be applied to protect any person, citizen or non-citizen without discrimination subject to the de jure or de facto control of a State party. The Committee emphasizes that the State’s obligation to prevent torture also applies to all persons who act, de jure or de facto, in the name of, in conjunction with, or at the behest of the State party. It is a matter of urgency that each State party should closely monitor its officials and those acting on its behalf and should identify and report to the Committee any incidents of torture or ill-treatment as a consequence of anti-terrorism measures, among others, and the measures taken to investigate, punish, and prevent further torture or ill-treatment in the future, with particular attention to the legal responsibility of both the direct perpetrators and officials in the chain of command, whether by acts of instigation, consent or acquiescence.

     III. Content of the obligation to take effective measures to prevent torture

9. Serious discrepancies between the Convention’s definition and that incorporated into domestic law create actual or potential loopholes for impunity. . . . In particular, the Committee emphasizes that elements of intent and purpose in article 1 do not involve a subjective inquiry into the motivations of the perpetrators, but rather must be objective determinations under the circumstances. It is essential to investigate and establish the responsibility of persons in the chain of command as well as that of the direct perpetrator(s).

     IV. Scope of State obligations and responsibility

15. The Convention imposes obligations on States parties and not on individuals. States bear international responsibility for the acts and omissions of their officials and others, including agents, private contractors, and others acting in official capacity or acting on behalf of the State, in conjunction with the State, under its direction or control, or otherwise under colour of law.

16. Article 2, paragraph 1, requires that each State party shall take effective measures to prevent acts of torture not only in its sovereign territory but also “in any territory under its jurisdiction.” The Committee has recognized that “any territory” includes all areas where the State party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law. The reference to “any territory” in article 2, like that in articles 5, 11, 12, 13 and 16, refers to prohibited acts committed not only on board a ship or aircraft registered by a State party, but also during military occupation or peacekeeping operations and in such places as embassies, military bases, detention facilities, or other areas over which a State exercises factual or effective control. The Committee notes that this interpretation reinforces article 5, paragraph 1 (b), which requires that a State party must take measures to exercise jurisdiction “when the alleged offender is a national of the State.” The Committee considers that the scope of “territory” under article 2 must also include situations where a State party exercises, directly or indirectly, de facto or de jure control over persons in detention.

19. Additionally, if a person is to be transferred or sent to the custody or control of an individual or institution known to have engaged in torture or ill-treatment, or has not implemented adequate safeguards, the State is responsible, and its officials subject to punishment for ordering, permitting or participating in this transfer contrary to the State’s obligation to take effective measures to prevent torture in accordance with article 2, paragraph 1. The Committee has expressed its concern when States parties send persons to such places without due process of law as required by articles 2 and 3.

     VII. Superior orders

 26. The non-derogability of the prohibition of torture is underscored by the long-standing principle embodied in article 2, paragraph 3, that an order of a superior or public authority can never be invoked as a justification of torture Thus, subordinates may not seek refuge in superior authority and should be held to account individually. At the same time, those exercising superior authority - including public officials - cannot avoid accountability or escape criminal responsibility for torture or ill-treatment committed by subordinates where they knew or should have known that such impermissible conduct was occurring, or was likely to occur, and they failed to take reasonable and necessary preventive measures. The Committee considers it essential that the responsibility of any superior officials, whether for direct instigation or encouragement of torture or ill-treatment or for consent or acquiescence therein, be fully investigated through competent, independent and impartial prosecutorial and judicial authorities. Persons who resist what they view as unlawful orders or who cooperate in the investigation of torture or ill-treatment, including by superior officials, should be protected against retaliation of any kind.

Obama Administration Views

     On his third day in office, President Barack Obama signed three executive orders marking a sharp departure from his predecessor’s approach to detention and interrogation policies. Some of those changes are reviewed in the update to Chapter 14. President Obama’s Executive Order on “Ensuring Lawful Interrogation” revoked President Bush’s July 20, 2007 Executive Order 13440, required that “the CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future,” and established a special interagency taskforce to review detention and interrogation policies. Section 2 of the order stipulated that terms such as “treated humanely” shall have the same meaning as the same terms in Common Article 3 of the Geneva Conventions. Section 3 provides:

Sec. 3.  Standards and Practices for Interrogation of Individuals in the Custody or Control of the United States in Armed Conflicts.

(a)  Common Article 3 Standards as a Minimum Baseline.  Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340 2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.

(b)  Interrogation Techniques and Interrogation-Related Treatment.  Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2 22.3 (Manual).  Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes.  . . .

(c)  Interpretations of Common Article 3 and the Army Field Manual.  From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2 22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document, Army Field Manual 34 52   issued by the Department of Justice between September 11, 2001, and January 20, 2009.

In April 2009, President Obama and Attorney General Eric Holder stated that anyone who relied “in good faith” on the legal advice contained in the OLC legal opinions described in this update would not be subject to prosecution. In August 2009, Holder announced that he had reviewed a report by the Department of Justice Office of Professional Responsibility (OPR) reviewing OLC legal memoranda on EITs. The still classified OPR report “recommends that the Department reexamine previous decisions to decline prosecution in several cases related to the interrogation of certain detainees.” On the basis of that report and Holder’s review of the 2004 CIA Inspector General’s report and related material, Holder “concluded that the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” Holder also reiterated “that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”

Does Coercive Interrogation Work?

Holder’s decision to conduct a preliminary review reignited a long-simmering debate over the effectiveness of the Bush Administration’s interrogation practices. Some senior Bush Administration officials, most notably former Vice President Dick Cheney, assert that the Bush administration approach prevented any post-9/11 terrorist attacks on the United States and saved thousands of lives. Others assert that traditional rapport-building approaches to interrogation are more effective, and argue that the use of coercive interrogation tactics produces unreliable information that diverts scarce resources, greatly damages the U.S. reputation abroad, renders prosecution of individuals subject to such practices difficult, and serves as a major recruiting theme for al Qaeda and other groups opposed to U .S. interests.

During the course of the Bush administration, CIA officials repeatedly described the use of EITs as critical to obtaining intelligence that could be used to locate senior al Qaeda officials and prevent terrorist attacks. The OLC regularly relied on this view as part of the basis for its position that CIA’s use of EITs was lawful.

The May 2004 Special Review of the CIA Inspector General discusses the effectiveness of the CIA’s overall program and of EITs at some length, although significant parts of the report have been redacted:

EFFECTIVENESS

211. The detention of terrorists has prevented them from engaging in further terrorist activity, and their interrogation has provided intelligence that has enabled the identification and apprehension of other terrorists, warned of terrorists [sic] plots planned for the United States and around the world, and supported articles frequently used in the finished intelligence publications for senior policymakers and war fighters. In this regard, there is no doubt that the Program has been effective. Measuring the effectiveness of EITs, however, is a more subjective process and not without some concern.

212. When the Agency began capturing terrorists, management judged the success of the effort to be getting them off the streets, [redacted]. With the capture of terrorist who had access to much more significant, actionable information, the measure of success of the Program increasingly became the intelligence obtained from the detainees.

216. Detainee information has assisted in the identification of terrorists. For example, information from Abu Zubaydah helped lead to the identification of Jose Padilla and Binyam Muhammed--operatives who had plans to detonate a uranium-topped dirty bomb in either Washington, D.C., or New York City. Riduan "Hambalf” Isomuddin provided information-that led to the arrest of previously unknown members of an Al-Qa'ida cell in Karachi. They were designated as pilots for an aircraft attack inside the United States. Many other detainees, including lower-level detainees such as Zubayr and Majid Khan, have provided leads to other terrorists, but probably the most prolific has been Khalid Shaykh Muhammad. He provided information that helped lead to the arrests of terrorists including Sayfullah Paracha and his son Uzair Paracha, businessmen whom Khalid Shaykh Muhammad planned to use to smuggle explosives into the United States: Saleh Almari, a sleeper operative in New York; and Majid Khan, an operative who could enter the United States easily and was tasked to research attacks [redacted] Khalid Shaykh Muhammad's information also led to the investigation and prosecution of Iyman Paris, the truck driver arrested in early 2003m Ohio.

217. Detainees, both planners and operatives, have also made the Agency aware of several plots planned for the United States and around the world. The plots identify plans to [redacted] attack the U.S. consulate in Karachi, Pakistan; hijack aircraft to fly into Heathrow Airport [redacted] loosen track spikes in an attempt to derail a train in the United States; [redacted] blow up several U.S. gas stations to create panic and havoc; hijack and fly an airplane into the tallest building in California in a west coast version of the World Trade Center attack; cut the lines of suspension bridges in New York in an effort to make them collapse; [redacted] This Review did not uncover any evidence that these plots were imminent. Agency senior managers believe that lives have been saved as a result of the capture and interrogation of terrorists who were planning attacks, in particular Khalid Shaykh Muhammad, Abu Zubaydah, Hambali, and Al-Nashiri.

218. [redacted] judge the reporting from detainees as one of the most important sources for finished intelligence. [redacted] . . . In an interview, the DCI said he believes the use of EITs has proven to be extremely valuable in obtaining enormous amounts of critical threat information from detainees who had otherwise believed they were safe from any harm in the hands of Americans.

219. [redacted]

220. Inasmuch as EITs have been used only since August 2002, and they have not all been used with every high value detainee, there is limited data on which to assess their individual effectiveness. This Review identified concerns about the use of the waterboard, specifically whether the risks of its use were justified by the results, whether it has been unnecessarily used in some instances, and whether the fact that it is being applied in a manner different from its use in SERE training brings into question the continued applicability of the DoJ opinion to its use. . . .

221. Determining the effectiveness of each EIT is important in facilitating Agency management's decision as to which techniques should be used and for how long. Measuring the overall effectiveness of EITs is challenging for a number of reasons including: (1) the Agency cannot determine with any certainty the totality of the intelligence the detainee actually possesses: (2) each detainee has different fears of and tolerance for EITs; (3) the application of the same EITs by different interrogators may have different results; and [redacted]

222. The waterboard has been used on three detainees: Abu Zuba dahl Al-Nashiri, and Khalid Shaykh Muhammad. [redacted] with the belief that each of the three detainees possessed perishable information about imminent threats against the United States.

223. Prior to the use of EITs, Abu Zubaydah provided information for [redacted] intelligence reports. Interrogators applied the waterboard to Abu Zubaydah at least 83 times during August 2002. During the period between the end of the use of the waterboard and 30 Apri1 2003, he provided information for approximately [redacted] additional reports. It is not possible to say definitively that the waterboard is the reason for Abu Zubaydah's increased production, or if another factor, such as the length of detention, was the catalyst. Since the use of the waterboard, however, Abu Zubaydah has appeared to be cooperative.

224. With respect to Al-Nashiri [redacted] reported two waterboard sessions in November 2002, after which the psychologist/interrogators determined that Al-Nashiri was compliant. However, after being moved [redacted] Al-Nashiri was thought to be withholding information. Al-Nashiri subsequently received additional EITs, but not the waterboard. The Agency then determined Al-Nashiri to be "compliant." Because of the litany of techniques used by different interrogators over a relatively short period of time, it is difficult to identify exactly why Al-Nashiri became more willing to provide information. However, following the use of EITs, he provided information about his most current operational planning as opposed to the historical information he provided before the use of EITs.

225. On the other hand, Khalid Shaykh Muhammad, an accomplished resistor, provided only a few intelligence reports prior to" the use of the waterboard, and analysis of that information revealed that much of it was outdated, inaccurate, or incomplete. . . . Khalid Shaykh Muhammad received 183applications of the waterboard in March 2003 [redacted].

Problem II.C.: Narrowing Human Rights Treaties

In 2005, Alain Pellet, the International Law Commission’s Special Rapporteur on Reservations to Treaties, discussed in his tenth report some of the Commission’s draft guidelines on reservations and their rationale. On the practice of some states in making reservations to preserve the application of their domestic law, he observed:

105. What matters here is that the State or international organization formulating the reservation should not use its domestic law as a cover for not actually accepting any new international obligation even though a treaty would have it change its practice. While article 27 of the Vienna Convention on the Law of Treaties cannot rightly be said to apply to the case in point, it should nevertheless be borne in mind that national laws are “merely facts” from the standpoint of international law and that the very aim of a treaty can be to lead States to modify them.

Pellet notes further that general reservations insisting on the primacy of national law may be invalid if their effect is to contravene provisions essential to the object and purpose of a treaty. As an example, Pellet cites Mauritania’s reservation to CEDAW accepting all provisions “which are not contrary to Islamic Sharia and are in accordance with our Constitution.”

On the effect of reservations to peremptory norms and non-derogable provisions, Pellet states that while a state cannot exempt itself from a peremptory norm:

while accepting the content of the rule, it may wish to escape the consequences arising out of it, particularly in respect of monitoring, and on this point, there is no reason why the reasoning followed in respect of customary rules which are merely binding should not be transposed to peremptory norms. However, as regrettable as this may seem, reservations do not have to be justified, and in fact, they seldom are. In the absence of clear justification, therefore, it is impossible for the other contracting parties or for monitoring bodies to verify the validity of the reservation, and it is best to adopt the principle that any reservation to a provision which formulates a rule of jus cogens is null and void ipso jure.

137. This conclusion, however, must be accompanied by two major caveats. Firstly, this prohibition does not result from article 19 (c) of the Vienna Convention but, mutatis mutandis, from the principle set out in article 53. Secondly, there are other ways for States to avoid the consequences of the inclusion in a treaty of a peremptory norm of general international law: they may formulate a reservation not to the substantive provision concerned, but to “secondary” articles governing treaty relations (monitoring, dispute settlement, interpretation), even if this means restricting its scope to a particular substantive provision.

Regarding non-derogable provisions, Pellet continues:

142. It must therefore be accepted that, while certain reservations to non-derogable provisions are certainly ruled out — either because they would hold in check a peremptory norm, or because they would be contrary to the object and purpose of the treaty — this is not necessarily always the case. The non-derogable nature of a right protected by a human rights treaty does not in itself prevent a reservation from being formulated, provided that it applies only to certain limited aspects relating to the implementation of the right in question; but it draws attention to its importance and constitutes a useful guide for assessing the criterion of the object and purpose of the treaty.

In 2007, the ILC provisionally adopted a number of provisions relating to the validity of reservations. They include:

3.1.5 Incompatibility of a reservation with the object and purpose of the treaty
A reservation is incompatible with the object and purpose of the treaty if it affects an essential element of the treaty that is necessary to its general thrust, in such a way that the reservation impairs the raison d’être of the treaty.

3.1.6 Determination of the object and purpose of the treaty
The object and purpose of the treaty is to be determined in good faith, taking account of the terms of the treaty in their context. Recourse may also be had in particular to the title of the treaty, the preparatory work of the treaty and the circumstances of its conclusion and, where appropriate, the subsequent practice agreed upon by the parties.

3.1.8 Reservations to a provision reflecting a customary norm
1. The fact that a treaty provision reflects a customary norm is a pertinent factor in assessing the validity of a reservation although it does not in itself constitute an obstacle to the formulation of the reservation to that provision.
2. A reservation to a treaty provision which reflects a customary norm does not affect the binding nature of that customary norm which shall continue to apply as such between the reserving State or international organization and other States or international organizations which are bound by that norm.

3.1.9 Reservations contrary to a rule of jus cogens
A reservation cannot exclude or modify the legal effect of a treaty in a manner contrary to a peremptory norm of general international law.

3.1.10 Reservations to provisions relating to non-derogable rights
A State or an international organization may not formulate a reservation to a treaty provision relating to non-derogable rights unless the reservation in question is compatible with the essential rights and obligations arising out of that treaty. In assessing that compatibility, account shall be taken of the importance which the parties have conferred upon the rights at issue by making them non-derogable.

In May 2009, the ILC provisionally adopted additional draft guidelines, including:

3.2.1 Competence of the treaty monitoring bodies to assess the validity of reservations
A treaty monitoring body may, for the purpose of discharging the functions entrusted to it, assess the validity of reservations formulated by a State or an international organization.

The conclusions formulated by such a body in the exercise of this competence shall have the same legal effect as that deriving from the performance of its monitoring role.

The Commission has yet to adopt even provisionally a rule on the effects of an invalid reservation. A 2006 Working Group proposed that invalid reservations be considered null and void and that the reserving state should remain a party “unless its contrary intention is incontrovertibly established,” a position the Special Rapporteur felt “perhaps goes a little far.”

In 2006, the International Court of Justice had occasion to revisit its own 1951 judgment on the permissibility of reservations to the Genocide Convention. In Democratic Republic of Congo v. Rwanda, the Court had to determine whether Rwanda’s reservation to Article IX of the Genocide Convention, which refers disputes under that Convention to the ICJ, precluded the exercise of the Court’s jurisdiction over the DRC’s complaint. The Court held:

67. Rwanda’s reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention. In the circumstances of the present case, the Court cannot conclude that the reservation of Rwanda in question, which is meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention, is to be regarded as being incompatible with the object and purpose of the Convention.

In a joint separate opinion, Judges Higgins, Kooijmans, Elaraby, Owada and Simma expressed agreement with the outcome but concern over “some issues underlying paragraph 67. . . .”

4. In recent years there has been a tendency for some States, and certain commentators, to view the Court’s 1951 Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide as stipulating a régime of inter-State laissez-faire in the matter of reservations, in the sense that while the object and purpose of a convention should be borne in mind both by those making reservations and those objecting to them, everything in the final analysis is left to the States themselves.

5. In our view a proper reading of the 1951 Advisory Opinion suggests that this conclusion is too sweeping. . . .

[After noting the context of the 1951 decision, the opinion continues:]

9. The Court in 1951 was clearly not unaware of the hazards inherent in its answers, in the sense that they would entail a veritable web of diverse reciprocal commitments within the framework of a multilateral convention. . . .

10. In the event, the problems which the Court could already envisage in 1951 have turned out to be vastly greater than it could have foreseen. The Genocide Convention stood virtually alone in the sphere of human rights in 1951. Since then it has been added to by a multitude of multilateral conventions, to which States have not hesitated to enter a plethora of reservations — often of a nature that gives serious concern as to compatibility with the object and purpose of the treaty concerned. And the vast majority of States, who the Court in 1951 envisaged would scrutinize and object to such reservations, have failed to engage in this task.

[The opinion notes the many issues that have arisen since 1951, including the role of treaty monitoring bodies in assessing reservations and the issue of severability, and adds that the practice of regional courts and the Human Rights Committee has “not followed the “laissez faire” approach attributed to the International Court’s Advisory Opinion of 1951 but instead pronounced on the validity of specific reservations. The opinion continues:]

16. . . . The practice of such bodies is not to be viewed as “making an exception” to the law as determined in 1951 by the International Court; we take the view that it is rather a development to cover what the Court was never asked at that time, and to address new issues that have arisen subsequently.

21. We believe it is now clear that it had not been intended to suggest that the fact that a reservation relates to jurisdiction rather than substance necessarily results in its compatibility with the object and purpose of a convention. Much will depend upon the particular convention concerned and the particular reservation. In some treaties not all reservations to specific substantive clauses will necessarily be contrary to the object and purpose of the treaty. . . . Conversely, a reservation to a specific “procedural” provision in a certain convention could be contrary to the treaty’s object and purpose. For example, the treaty bodies set up under certain United Nations conventions may well be central to the whole efficacy of those instruments.

25. It is a matter for serious concern that at the beginning of the twenty-first century it is still for States to choose whether they consent to the Court adjudicating claims that they have committed genocide. It must be regarded as a very grave matter that a State should be in a position to shield from international judicial scrutiny any claim that might be made against it concerning genocide. . . .

26. Judicial settlement of claims relating to genocide is highly desirable. At the same time, it cannot be said that the entire scheme of the Genocide Convention would necessarily collapse if some States make reservations to Article IX. Were it so, adherence to the jurisdiction of the Court could have been made compulsory. . . .

28. There are other elements, however, that continue to concern us. While the Court is not a monitoring body under a treaty in the normal sense of that term (that is to say, it does not receive obligatory reports from States upon which it examines them for compliance), it nonetheless does have an important role under the Genocide Convention. Under that Convention it is States who are the monitors of each other’s compliance with prohibition on genocide. Article IX then gives a State who believes another State is committing genocide the chance to come to the Court. Article IX speaks not only of disputes over the interpretation and application of the Convention, but over the “fulfilment of the Convention”. Further, the disputes that may be referred to the Court under Article IX “include[e] those relating to the responsibility of a State for genocide”.

29. It is thus not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention and we believe that this is a matter that the Court should revisit for further consideration.

Probem III.: Guaranteeing Economic, Social, and Cultural Rights: A Right to Food?

A. The Problem

Sharp increases in food prices in 2007-08 and the global economic crisis beginning in 2009 have exacerbated the problem of global hunger; according to the FAO, as many as one billion people are now going hungry each year. According to Olivier de Schutter, the UN’s Special Rapporteur on the Right to Food, the hungry fall into three categories: “first, smallscale farmers and other self-employed food producers . . . (60% of the hungry); second, landless agricultural producers (20% of the hungry); and third, the urban poor (the remaining 20%).”

B. Background on Economic, Social, and Cultural Rights

Notes and Questions

6. In December 2008, the UN General Assembly unanimously approved an Optional Protocol to the Covenant on Economic, Social, and Cultural Rights. The Optional Protocol establishes an individual complaints procedure similar to those available under the Covenant on Civil and Political Rights and the Convention on the Elimination of Racial Discrimination. The Protocol will be opened for signature in September 2009 and will come into force when 10 states have ratified it.

7. In July 2009, the United States signed the Convention on the Rights of Persons with Disabilities, joining 141 other countries who have already signed what President Obama calls “the first new human rights convention of the 21st Century.” The Convention contains a mix of civil and political and economic, social, and cultural rights. U.S. signature, along with the U.S. decision to join the Human Rights Council, may mark a shift in U.S. policy towards greater receptivity to economic, social, and cultural rights and greater engagement with international human rights institutions.

D. The Right to Food

In 2004, the FAO adopted a set of voluntary guidelines intended to provide “practical guidance” to states on the implementation of the right to food. The FAO observes that the guidelines represent the first attempt by governments to interpret an economic, social and cultural right and to recommend actions to be undertaken for its realization. The guidelines suggest ways to implement the three levels of obligation identified in General Comment 12. The guidelines include general language supporting the development of democracy, good governance, and the rule of law, and economic policies that will reduce poverty and hunger.

In April 2009, the UN General Assembly held an Interactive Thematic Dialogue on the Global Food Crisis and the Right to Food. The U.S. delegation stated that “we do not believe that an abstract discussion [of] human rights versus human needs is a productive way to address the very real problem of hunger and food insecurity. We prefer to focus on concrete actions to meet these challenges.” The U.S. delegation added that “We have all committed ourselves to the UN Millenium Development Goal of halving the proportion of those who suffer from hunger by 2015. Achieving that goal requires each of us to take action now . . . .” The U.S. delegation then specified a number of steps taken by the Obama Administration to increase food aid both domestically and internationally, e.g., asking Congress “to double U.S. financial support for agricultural development in poor countries to more than $1 billion by 2010.”

Problem IV.: Women’s Rights: Female Circumcision or Female Genital Mutilation

A. The Problem

     In an indication of growing opposition to the practice of female circumcision, a group of high-ranking Muslim theologians issued a set of recommendations declaring the practice incompatible with Islam at a conference in Cairo in November 2006. The recommendations are excerpted below and are deemed to have the force of a fatwa.

2. Genital circumcision is a deplorable, inherited custom, which is practiced in some societies and is copied by some Muslims in several countries. There are no written grounds for this custom in the Qur’an with regard to an authentic tradition of the Prophet.

3. The female genital circumcision practiced today harms women psychologically and physically. Therefore, the practice must be stopped in support of one of the highest values of Islam, namely to do no harm to another . . . .

4. The conference calls on Muslims to end this deplorable custom in accordance with the teachings of Islam, which forbid injuring another in any form.

The World Health Organization (WHO) estimates that “100 to 140 million girls and women worldwide are currently living with the consequences of FGM,” and that “in Africa, about three million girls are at risk for FGM annually.” In 2008, WHO, the Office of the High Commissioner for Human Rights, and eight other UN agencies issued a joint statement urging an end to FGM. The statement describes new research on the health effects of FGM, and declares that “Seen from a human rights perspective, the practice reflects deep-rooted inequality between the sexes, and constitutes an extreme form of discrimination against women.”

C. Violence Against Women and the Public-Private Distinction

Notes and Questions

In September 2006, the United States issued a new Army Field Manual (FM) 2-22.3, "Human Intelligence Collector Operations," to replace the 1992 version. The new Field Manual includes an Appendix M aimed at interrogation of “unlawful combatants”; Appendix M permits food deprivation, sleep deprivation, isolation and certain other techniques not permitted in the earlier version of the manual.