Pop-up Historical Documents: Torture Report
On
Detainee Interrogations in the Global War on Terrorism:
Assessment of Legal, Historical, Policy, and
Operational Considerations
6 March 2003
Classified by: Secretary Rumsfeld
Reason 1.5 (2)
Declassify on: 10 years
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II. International Law
The following discussion addresses the requirements of international law, as it pertains to the Armed Forces of the United States, as interpreted by the United States. As will be apparent in other sections of this analysis, other nations and international bodies may take a more restrictive view, which may affect our policy analysis and this is considered elsewhere.
A. The Geneva Conventions
The laws of war contain obligations relevant to the issue of interrogation techniques and methods. It should be noted, however, that it is the position of the U.S. Government that none of the provisions of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Third Geneva Convention) apply to al Qaida detainees because, inter alia, al Qaida is not a High Contracting Party to the Convention. As to the Taliban, the U.S. position is that the provisions of Geneva apply to our present conflict with the Taliban, but that Taliban detainees do not qualify as prisoners of war under Article 4 of the Geneva Convention. The Department of Justice has opined that the Geneva Convention Relative to the Protection of Civilian Personnel in time of War (Fourth Geneva Convention) does not apply to unlawful combatants.
B. The 1994 Convention Against Torture
The United States’ primary obligation concerning torture and related practices derives from the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment (commonly referred to as “the Torture Convention”). The United States ratified the Convention in 1994, but did so with a variety of Reservations and Understandings.
Article 1 of the Convention defines the term “torture” for purposes of the treaty. The United States conditioned its ratification of the treaty on an understanding that:
…in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
Article 2 of the Convention requires the Parties to “take effective legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction.” The U.S. Government believed existing state and federal criminal law was adequate to fulfill this obligation, and did not enact implementing legislation. Article 2 also provides that acts of torture cannot be justified on the grounds of exigent circumstances, such as a state of war or public emergency, or on orders from a superior officer or public authority. The United States did not have an Understanding or Reservation relating to this provision.
Article 3 of the Convention contains an obligation not to expel, return, or extradite a person to another state where there are “substantial grounds” for believing that the person would be in danger of being subjected to torture. The U.S. understanding relating to this article is that it only applies “if it is more likely than not” that the person would be tortured.
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The United States is obligated under Article 10 of the Convention to ensure that law enforcement and military personnel involved in interrogations are educated and informed regarding the prohibition against torture. Under Article 11, systematic reviews of interrogation rules, methods, and practices are also required.
In addition to torture, the Convention prohibits cruel, inhuman and degrading treatment or punishment within territories under a Party’s jurisdiction (Art 16). Primarily because the meaning of the term “degrading treatment” was vague and ambiguous, the United States imposed a Reservation on this article to the effect that it considers itself bound only to the extent that such treatment or punishment means the cruel, unusual and inhumane treatment or punishment prohibited by the 5th, 8th, and 14th Amendments to the U. S. Constitution (see discussion infra, in the Domestic Law section).
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III. Domestic Law
A. Federal Criminal Law
1. Torture Statute
18 U.S.C. 2340 defines as torture any “act committed by a person under the color of law specifically intended to inflict severe physical or mental pain…” The intent required is to inflict severe physical or mental pain. 18 U.S.C. 2340A requires that the offense occur “outside the United States”. Jurisdiction over the offense extends to any national of the United States or any alleged offender present in the United States, and could, therefore, reach military members, civilian employees of the United States, or contractor employees. The “United States” is defined to include all areas under jurisdiction of the United States, including the special maritime and territorial jurisdiction (SMTJ) of the United States. SMJT is a statutory creation that extends the criminal jurisdiction of the United States for designated crimes to defined areas. The effect is to grant federal court criminal jurisdiction for the specifically identified crimes.
Guantanamo Bay Naval Station (GTMO) is included within the definition of the special maritime and territorial jurisdiction of the United States for purposes of 2340. Thus, the Torture Statute does not apply to the conduct of U. S. personnel at GTMO. That GTMO is within the SMTJ of the United States is manifested by the prosecution of civilian dependents and employees living in GTMO in Federal District Courts based on SMTJ jurisdiction and Department of Justice opinion and the clear intention of Congress as reflected in the 2001 amendment to the SMJT.
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For the purposes of this discussion, it is assumed that an interrogation done for official purposes is under “color of law” and that detainees are in DOD’s custody or control.
Although Section 2340 does not apply to interrogations at GTMO, it would apply to U.S. operations outside U.S. jurisdiction, such as Afghanistan. The following analysis is relevant to such activities.
To convict a defendant of torture, the prosecution must establish that: (1) the torture occurred outside the United States; (2) the defendant acted under color of law; (3) the victim was within the defendant” custody or physical control; (4) the defendant intended to cause severe physical or mental pain or suffering; and (5) that the act inflicted severe physical or mental pain or suffering.
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