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Detainee Treatmentdetainee The Report of The Constitution Project’s Task Force on Force Task The ReportThe Constitution Project’s of Detention at Guantánamo Afghanistan Iraq The Legal Process of the Federal Government After September 11 Rendition and the “Black Sites” The Role of Medical Professionals in Detention and Interrogation Operations True and False Confessions: The Efficacy of Torture and Brutal Interrogations Effects and Consequences of U.S. Policies Recidivism The Obama Administration The Role of Congress Detainee Treatment 1200 18th Street, NW, Suite 1000 Washington, DC 20036 Tel: 202.580.6920 Fax: 202.580.6929 Email: [email protected] www.constitutionproject.org www.detaineetaskforce.org The Report of The Constitution Project’s Task Force on Detainee Treatment The Report of The Constitution Project’s Task Force on Detainee Treatment © 2013 The Constitution Project. All Rights Reserved. Requests for permission to reproduce selections from this book should be mailed to: The Constitution Project, 1200 18th St. NW, Suite 1000, Washington, DC 20036 The Constitution Project sponsors independent, bipartisan committees to address a variety of important constitutional issues and to produce consensus reports and recommendations. The views and conclusions expressed in these Constitution Project reports, statements, and other material do not necessarily reflect the views of members of its Board of Directors or Board of Advisors. ISBN: 978-0-9890608-0-6 Book design by Keane Design and Communications, Inc. Contents Preface .........................................................................................................................I Members of The Constitution Project’s Task Force on Detainee Treatment .......III A Word on Reading This Report ...............................................................................IX Statement of the Task Force .....................................................................................1 Findings and Recommendations ..............................................................................9 General Findings and Recommendations Legal Findings and Recommendations Extraordinary Rendition Findings and Recommendations Medical Findings and Recommendations Consequences Findings and Recommendations Recidivism Findings and Recommendations Obama Administration Findings and Recommendations Chapter 1 - Detention at Guantánamo ...................................................................25 Profile: Albert Shimkus Afghanistan: The Gateway to Guantánamo Guantánamo as the Only Option Evolution of the Interrogation Techniques The Battle Within the Pentagon Over Interrogation Techniques Habeas, Hunger Strikes & Suicides Guantánamo Today Profile: The International Committee of the Red Cross and the Role of Christophe Girod Chapter 2 - Afghanistan ...........................................................................................57 The Fog of War? The Early Setup Afghanistan’s Road to Guantánamo The Deaths of Detainees Mullah Habibullah and Dilawar at Bagram in December 2002 The Other Government Agency: The CIA and The Salt Pit The Development of the Counterinsurgent Strategy (COIN) The Future of Detention in Afghanistan and the U.S. Role Chapter 3 - Iraq .........................................................................................................85 Special Forces and the CIA The Battlefield Interrogation Facility Five Suspicious Deaths The CIA’s and JSOC’s Response to Allegations of Abuse The Regular Military Rules of Engagement for Conventional Forces in Iraq Abu Ghraib Abuses by Conventional Forces Outside Abu Ghraib Changes After Abu Ghraib Accounts from Former Iraqi Detainees Chapter 4 - The Legal Process of the Federal Government After September 11 ................................................................................................ 119 Overview of the Legal Framework in the United States on September 11 The U.S. Constitution The Constitution Project The Geneva Conventions The Convention Against Torture The Torture Statute The War Crimes Act Other Statements of U.S. Legal Intent The Initial Legal Response of the Federal Government after September 11 The Early Expansion of Executive Authority The First Detainee Legal Considerations Application of the Geneva Conventions to Al Qaeda and Taliban Detainee Interrogation Policy is Established in the Absence of the Geneva Conventions Legal Status and Legal Rights Afforded to Detainees Rendition Interrogation Techniques Evolution of Legal Advice Governing Detainee Treatment Jack Goldsmith III Replaces Jay Bybee Acting Assistant Attorney General Daniel Levin Bybee’s August 1, 2002, Memorandum to Gonzales is Replaced Acting Assistant Attorney General Steven G. Bradbury Closing OLC Chapter of the Bush Presidency Why the OLC Opinions Must Be Rejected Chapter 5 - Rendition and the “Black Sites” ..................................................... 163 A Brief History of the Rendition Program Expansion of the Program Post-September 11 Diplomatic Assurances Applicable Law International Cooperation Public Recognition of the Extraordinary Rendition Program The Black Sites Afghanistan Iraq Thailand Poland Romania Lithuania Morocco Kosovo Djibouti Somalia Legal and Political Consequences of the Rendition Program Chapter 6 - The Role of Medical Professionals in Detention and Interrogation Operations ............................................................................ 203 Doctors’ and Psychologists’ Role in Treatment of Prisoners in CIA Custody Learned Helplessness The Interrogation of Abu Zubaydah Refinements to the CIA Program by the Office of Medical Services High-Value Detainee Accounts and Red Cross Findings on the CIA Interrogation Program The Guantánamo BSCTs BSCTs in Iraq and Afghanistan Medical Personnel and Abuse Reporting Hunger Strikes Hunger Strikes and Force-feeding at Guantánamo Ideal Management of Hunger Strikes Analysis of Ethical Obligations of Health Personnel Toward Detainees Undergoing Interrogation The Constitution Project The Ethical Obligations of Medical Professionals Toward Detainees Separation of DOD and CIA Medical Personnel From Their Professional Ethical Obligations Revisions to Professional Guidelines Regarding Participation in Abuse After September 11 Complaints Against Individual Practitioners Chapter 7 - True and False Confessions: The Efficacy of Torture and Brutal Interrogations ............................................................................................ 243 Assertions of Useful Information Obtained Through Coercion The Death of Osama bin Laden The Interrogation of Abu Zubaydah The Library Tower Plot The Danger of False Confessions Effective Interrogation Without Torture Chapter 8 - Effects and Consequences of U.S. Policies .................................. 267 Legal and Political Consequences of U.S. Detention Operations International Legal Consequences International Political Consequences: Libya Case Study Operational Consequences for the U.S. Military The Impact of Abuse on U.S. Personnel The Impact of Torture on Collaboration with Allied Personnel Impact on Detainees Practical Issues Upon Release Lasting Impact: Physical and Mental Consequences Chapter 9 - Recidivism......................................................................................... 295 Department of Defense Data Methodology / Criteria Congressional Report NGOs, the Academy, the Media Chapter 10 - The Obama Administration ........................................................... 311 The First Year Early Executive Orders ......................................................................................................... The Debate over the Uighurs Disclosure of the Torture Memos, Nondisclosure of Abuse Photographs Military Commissions, Civilian Courts, and Detention Without Trial Detainee Transfers and Proxy Detention Red Cross Access and “Separation” of Detainees Secrecy and Accountability Can It Happen Again? Chapter 11 - The Role of Congress .................................................................... 337 Reaction to Post-September 11 Abuses Historical Perspective Memo in Support of Finding #1 ........................................................................... 347 Memo in Support of Finding #2 ........................................................................... 371 Endnotes ............................................................................................................... 403 Guide to Acronyms ............................................................................................... 545 Index ...................................................................................................................... 551 The Constitution Project The Constitution Project Preface The Constitution Project is a national watchdog group that advances bipartisan, consensus- based solutions to some of most difficult constitutional challenges of our time. For more than 15 years, we have developed a reputation for bringing together independent groups of policy experts and legal practitioners from across the political and ideological spectrums to issue reports and recommendations that safeguard our nation’s founding charter. The Constitution Project’s blue-ribbon Task Force on Detainee Treatment follows this successful model. It is made up of former high-ranking officials with distinguished careers in the judiciary, Congress, the diplomatic service, law enforcement, the military, and other parts of the executive branch, as well as recognized experts in law,
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