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Legal Standards and the Interrogation of Prisoners in the War on Terror

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Legal Standards and the Interrogation of Prisoners in the War on Terror Division of United States Studies Latin American Program Division of International Security Studies Legal Standards and the Interrogation of Prisoners in the War on Terror Edited by Cynthia Arnson and Philippa Strum with an introduction by Adam Stubits Division of United States Studies Latin American Program Division of International Security Studies Legal Standards and the Interrogation of Prisoners in the War on Terror Edited by Cynthia Arnson and Philippa Strum with an introduction by Adam Stubits Available from the Woodrow Wilson International Center for Scholars One Woodrow Wilson Plaza 1300 Pennsylvania Avenue NW Washington, DC 20004-3027 www.wilsoncenter.org ISBN 1-933549-30-0 December 2007 Cover photo: © 2004, 2005, 2006, The Washington Post. Reprinted with Permission. enShui/Odilon Dimier/Getty Images The Woodrow Wilson International Center for Scholars, established by Congress in 1968 and headquartered in Washington, D.C., is a living national memorial to President Wilson. The Center’s mission is to commemorate the ideals and concerns of Woodrow Wilson by providing a link between the worlds of ideas and policy, while fostering research, study, discussion, and collaboration among a broad spectrum of individuals concerned with policy and scholarship in national and international affairs. Supported by public and private funds, the Center is a nonpartisan institution engaged in the study of national and world affairs. It establishes and maintains a neutral forum for free, open, and informed dialogue. Conclusions or opinions expressed in Center publications and pro- grams are those of the authors and speakers and do not necessarily reflect the views of the Center staff, fellows, trustees, advisory groups, or any individuals or organizations that provide financial support to the Center. The Center is the publisher of The Wilson Quarterly and home of Woodrow Wilson Center Press, dialogue radio and television, and the monthly news- letter “Centerpoint.” For more information about the Center’s activities and publications, please visit us on the web at www.wilsoncenter.org. Lee H. Hamilton, President and Director Board of Trustees Joseph B. Gildenhorn, Chair David A. Metzner,Vice Chair Public Members: James H. Billington, Librarian of Congress; Bruce Cole, Chair, National Endowment for the Humanities; Michael O.Leavitt, Secretary, U.S. Department of Health and Human Services; Tamala L. Longaberger, Designated Appointee of the President from within the Federal Government; Condoleezza Rice, Secretary, U.S. Department of State; Cristián Samper, Acting Secretary, Smithsonian Institution; Margaret Spellings, Secretary, U.S. Department of Education; Allen Weinstein, Archivist of the United States National Archives and Records Administration Private Citizen Members: Robin B. Cook, Donald E. Garcia, Bruce S. Gelb, Sander R. Gerber, Charles L. Glazer, Susan Hutchison, Ignacio E. Sanchez Contents ACKNOWLEDGEMENTS iii INTRODUCTION 1 PANEL I. THE DISCUSSION WITHIN THE U.S. GOVERNMENT William Taft, IV, Fried, Frank, Harris, Shriver & Jacobson LLP; 5 former Legal Advisor, U.S. Department of State Seth Stern, legal affairs reporter, Congressional Quarterly 7 David B. Rivkin Jr., Baker Hostetler LLP; former Legal Advisor 9 to the Counsel to the President Discussion 14 PANEL II: THE VIEW FROM OUTSIDE THE GOVERNMENT Amrit Singh, staff attorney,American Civil Liberties Union 29 Tom Parker, former counterterrorism official, United Kingdom 37 Juan Méndez, President, International Center for Transitional Justice 48 Discussion 52 TIME LINE 61 PARTICIPANT BIOGRAPHIES 69 Acknowledgments The editors would like to thank our colleague Robert Litwak, director of the Division of International Security Studies, whose collaboration was indispensable to the organi- zation of the June 2007 conference. We are also grateful to Susan Nugent and Acacia Reed of the Division of U.S. Studies, and Kelly Albinak and Adam Stubits of the Latin American Program, for their organizational, editorial, and research assistance. Latin American Program intern Sheree Adams also provided research support. The credit for publication design goes to Michelle Furman. Finally, we wish to thank the Woodrow Wilson Center for its support of this publi- cation and the conference on which it was based. LEGAL STANDARDS AND THE INTERROGATION OF PRISONERS IN THE WAR ON TERROR iii Introduction The years following the attacks of September 11, 2001 have witnessed an intense debate in the United States about the interrogation of terror suspects. Law professors, editori- al page writers, policymakers, members of the Executive Branch and of the armed forces, and judges—in addition to many other American citizens—have participated in a discussion about whether the interrogation standards implicit in the American Constitution and codified in domestic as well as international law apply to people sus- pected of participating in or possessing information about terrorist activities.Among the questions that arise are, for example, whether the Constitution’s Fourth Amendment prohibition against unreasonable searches and seizures and the Eighth Amendment pro- hibition against cruel and unusual punishment can be read to permit aggressive inter- rogation techniques when lives may be at stake; whether, should that not be the case, such prohibitions may nonetheless reasonably be suspended during a war on terror; whether the Geneva Convention and other international law instruments to which the United States is a signatory apply to such situations; and whether such practices are like- ly to result in usable and reliable information. The administration of President George W.Bush has taken the position that aggres- sive interrogation techniques are both necessary and permissible in the fight against al- Qaeda and other terrorists. Just days after the September 2001 attacks, President Bush expanded the authority of the CIA, permitting it to capture, detain and use deadly force against al-Qaeda operatives around the world. In February 2002, President Bush “deter- mined for the United States that members of al-Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war.”1 These protections include prohibitions on “mutilation, cruel treatment and torture” as well as “humiliating and degrading treatment” of detainees.2 Months later, Jay S. Bybee, then Assistant Attorney General, counseled the White House that in order to fall within the definition of tor- ture,“physical pain…must be equivalent in intensity to the pain accompanying serious organ failure, impairment of bodily function or even death.”3 The debate both within the United States and abroad exploded when, in April 2004, the abuse of detainees at Iraq’s Abu Ghraib prison became public. A month after the U.S.Army reported that seventeen soldiers had been charged with the mistreatment of Iraqi soldiers and subsequently removed from duty,CBS’s 60 Minutes II broke the details of the story,revealing for the first time photographs showing American soldiers abusing and humiliating Iraqi prisoners held at Abu Ghraib. Citing increased danger and fight- ing in Iraq, the Defense Department and General Richard Myers, the Chairman of the LEGAL STANDARDS AND THE INTERROGATION OF PRISONERS IN THE WAR ON TERROR 1 Joint Chiefs of Staff, had requested that CBS delay its broadcast. CBS complied, delay- ing the broadcast for two weeks. The related issue of extraordinary renditions, the extradition of suspects from one for- eign state to another for interrogation and prosecution, came to the forefront of the pub- lic debate in November 2005 as a result of a front-page article published in The Washington Post.4 Washington Post journalist Dana Priest reported on the existence of “black site” covert prisons used by the CIA and supported by congressionally appropri- ated funds. Individuals captured in Iraq and Afghanistan, as well as those suspected of involvement in terrorist activities, are held at such facilities because “it is illegal for the [United States] government to hold prisoners in such isolation in secret prisons in the United States.”5 On December 5, 2005, Secretary of State Condoleezza Rice said,“There have long been many other cases where, for some reason, the local government cannot detain or prosecute a suspect, and traditional extradition is not a good option. In those cases the local government can make the sovereign choice to cooperate in a rendition.” She noted further that “[t]he United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured.Where appropriate, the United States seeks assurances that transferred persons will not be tortured.”6 In response to the uproar created by these images, the Justice Department rescinded the Bybee memo and issued a more stringent definition of torture.7 In June 2006, the United States Supreme Court ruled that military commissions established by the Bush administration to try suspected members of al-Qaeda were unauthorized by federal law and violated international law.8 The opinion for the Court held that Common Article 3 of the Geneva Conventions was applicable to individuals being held at Guantánamo, requiring that they be treated humanely and tried in “a regularly constituted court afford- ing all the judicial guarantees which are recognized as indispensable by civilized peoples.”9 Three months later, the Pentagon issued new rules of interrogation
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