DOCSLIB.ORG

U.S. Obligations for the Treatment of Detainees

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
U.S. Obligations for the Treatment of Detainees Dec06text_web-ads-cut 12/7/06 4:23 PM Page 44 International Practice Section U.S. Obligations for the Treatment of Detainees by James P. Pfiffner he obligations of the United States whatever. Prisoners of war who refuse to Tgovernment for treatment of prisoners answer may not be threatened, insulted, during wartime are defined in international The four Geneva or exposed to unpleasant or disadvanta- law, particularly the Geneva Conventions. geous treatment of any kind.” 4 This prohi- Uncodified “customary international law” Conventions of 1949 bition of coercion would rule out many of may also bind the United States by forbid- the interrogation techniques and treat- ding torture of prisoners. In addition, the were designed to ment of prisoners at Guantanamo Bay and United Nations Convention Against at Abu Ghraib. Torture, which has been implemented in protect individuals who the U.S. criminal code, also prohibits tor- In order to qualify as a prisoner of war, ture. This analysis will briefly examine the are captured or at the members of states that have signed the legal constraints on the United States in its treaty must (among other things): belong treatment of prisoners. It will be argued mercy of the enemy to an organized group that is a party to the that even if the Geneva Conventions are conflict that is commanded by a responsi- deemed not to apply to detainees, other during times of war. ble person; wear a “distinctive sign” iden- laws prohibit torture. tifying them as a combatant; must carry arms openly.5 If there is some doubt Geneva Conventions Second Convention deals with the whether a detainee is entitled to status as The four Geneva Conventions of 1949 wounded, sick and shipwrecked at sea; a POW, the person is to be treated with were designed to protect individuals who the Third Convention deals with prisoners prisoner of war status until a properly con- are captured or at the mercy of the enemy of war; and the Fourth Convention deals stituted tribunal has determined the per- during times of war. The Third Convention with the treatment of civilian persons dur- son’s status.6 The United States recognized protects enemy combatants who are cap- ing time of war.2 as prisoners of war those captured in the tured as prisoners of war. The conventions Korean, Vietnam and first Gulf wars. apply to those countries that have signed Geneva Convention III the treaty. This includes Iraq and arguably The highest level of protection is accorded Geneva Convention IV Afghanistan, but President George W. to prisoners of war and provides that pris- Article IV of the Geneva Conventions Bush declared through executive order oners must be treated humanely and that, applies to civilians under control of a mil- that U.S. obligations under Geneva do not if interrogated, they cannot be forced to itary power. It forbids any “measure of apply to members of the Taliban in reveal information beyond their name, such a character as to cause the physical Afghanistan nor to terrorists who may rank, date of birth, and serial number.3 suffering or extermination of protected have plotted against the United States. The The convention does not forbid interroga- persons . [including] murder, torture, memo stated that “as a matter of policy, tion, but it limits the methods that can be corporal punishment . .7 Many of the the United States Armed Forces shall con- used to those that are humane. prisoners at Abu Ghraib fall into the tinue to treat detainees humanely and, to category of civilian detained by an occu- the extent appropriate and consistent with The Third Convention regarding prisoners pying power. military necessity, in a manner consistent of war states that: “No physical or mental with the principles of Geneva.” (emphasis torture, nor any other form of coercion, United States Army Regulations 190-8 pro- added) 1 The First Convention deals with may be inflicted on prisoners of war to vides for treatment of enemy prisoners of the wounded and sick in the field; the secure from them information of any kind war. It states that “all persons taken into 44 December 2006 Dec06text_web-ads-cut 12/7/06 4:23 PM Page 45 International Practice Section custody by U.S. forces will be provided Article 75 should also be considered to United States, the U.S. criminal code pro- with the protections of the [Geneva constitute a part of customary international hibits torture.19 Convention on Prisoners of War] until law binding on the United States.” 13 Thus, some other legal status is determined by even if the Geneva Conventions are The McCain Amendment of 2005 competent authority.” The regulation pro- deemed not to apply to captured persons U.S. Senator John McCain endured five hibits “inhumane treatment,” specifically suspected of terrorism, customary interna- years as a prisoner of war in Vietnam and “murder, torture, corporal punishment. tional law binds the United States to treat suffered severe torture. Thus his publicly sensory deprivation. and all cruel and detainees humanely. expressed outrage at reports of torture degrading treatment.” 8 perpetrated by U.S. soldiers and civilians U.N. Convention Against Torture at Guantanamo, Abu Ghraib, and in Common Article 3 and Customary The treatment of prisoners is also con- Afghanistan carried a large measure of International Law strained by the United Nations Convention legitimacy. McCain introduced an amend- Each of the four Geneva Conventions has Against Torture and Other Cruel, Inhuman ment to the Department of Defense several common articles that are identical. or Degrading Treatment or Punishment.14 Appropriations Act for 2006 that would Common Article 3 prohibits certain prac- The Convention Against Torture (CAT) ban torture by U.S. personnel, regardless tices in the treatment of those persons defines torture as “any act by which severe of geographic location. Section 1003 of under the control of military forces. The pain or suffering, whether physical or the Detainee Treatment Act of 2005 pro- article requires that detained persons be mental, is intentionally inflicted on a vides that “no individual in the custody or treated “humanely,” and it prohibits “vio- person for such purposes as obtaining under the physical control of the United lence to life and person, in particular mur- from him or a third person information or States Government, regardless of national- der of all kinds, mutilation, cruel treatment a confession . .” 15 The U.N. Torture ity or physical location, shall be subject to and torture,” and “outrages upon personal Convention provides that “no exceptional cruel, inhuman, or degrading treatment or dignity, in particular humiliating and circumstances whatsoever, whether a punishment.” 20 9 degrading treatment . .” According to state of war or a threat of war, internal Jennifer Elsea of the Congressional political instability or any other public President Bush threatened to veto the bill Research Service, “. Common Article 3 is emergency, may be invoked as a justifi- if it were passed, and Vice President now widely considered to have attained Richard B. Cheney led administration cation of torture.” 16 the status of customary international efforts in Congress to defeat the bill.21 law.” 10 Cheney first tried to get the bill dropped Goldman and Tittemore conclude that, entirely, then to exempt the Central based on the U.N. convention against tor- Customary international law may bind the Intelligence Agency from its provisions. ture and Article 75 of Protocol I (as part United States in its treatment of prisoners, The efforts were unavailing, and the mea- of customary international law) that it is irrespective of whether the Geneva sure was passed with veto-proof majorities “beyond question that the United States is Conventions are considered to apply. in both houses—90 to 9 in the Senate, and subject to an absolute and nonderogable According to the U.S. Army Field Manual 308 to 122 in the House. In a compromise, obligation under international human of the Law of Land Warfare, “unwritten or McCain refused to change his wording, but rights and humanitarian law to ensure customary law is firmly established by he did agree to add provisions that would that unprivileged combatants under its the custom of nations and well defined by allow civilian U.S. personnel to use the power are not subjected to torture or recognized authorities on international same type of legal defense that is accorded other cruel, inhuman or degrading treat- law. The unwritten or customary law of to uniformed military personnel.22 ment or punishment.” 17 war is binding upon all nations.” 11 However, in a signing statement, President Protocol I, Article 75 of the Geneva In 1994 the United States passed legisla- Bush used language that called into ques- Conventions, signed in 1977 but not rati- tion to implement the U.N. Convention tion whether he considered himself or the fied by the United States, also is consid- Against Torture (18 U.S.C., par. 2340), executive branch bound by the law. A ered to be part of customary international which provides for criminal sanctions for signing statement is a statement by the law. Protocol I provides that some acts perpetrators of torture, including the death president when a bill is signed that indi- “shall remain prohibited at any time and in penalty. Section 2340 of the law defines cates how the president interprets the bill. any place whatsoever, whether committed torture as “an act committed by a person It is intended to provide evidence of pres- by civilian or by military agents.” These acting under the color of law specifically idential intent corresponding to the weight acts include “murder,” “torture of all intended to inflict severe physical or men- given by federal courts to congressional kinds,” and “outrages upon personal dig- tal pain or suffering .
Load more

Recommended publications
  • In the Supreme Court of the United States
    No. ________ In the Supreme Court of the United States KHALED A. F. AL ODAH, ET AL., PETITIONERS, v. UNITED STATES OF AMERICA, ET AL., RESPONDENTS. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PETITION FOR WRIT OF CERTIORARI DAVID J. CYNAMON THOMAS B. WILNER MATTHEW J. MACLEAN COUNSEL OF RECORD OSMAN HANDOO NEIL H. KOSLOWE PILLSBURY WINTHROP AMANDA E. SHAFER SHAW PITTMAN LLP SHERI L. SHEPHERD 2300 N Street, N.W. SHEARMAN & STERLING LLP Washington, DC 20037 801 Pennsylvania Ave., N.W. 202-663-8000 Washington, DC 20004 202-508-8000 GITANJALI GUTIERREZ J. WELLS DIXON GEORGE BRENT MICKUM IV SHAYANA KADIDAL SPRIGGS & HOLLINGSWORTH CENTER FOR 1350 “I” Street N.W. CONSTITUTIONAL RIGHTS Washington, DC 20005 666 Broadway, 7th Floor 202-898-5800 New York, NY 10012 212-614-6438 Counsel for Petitioners Additional Counsel Listed on Inside Cover JOSEPH MARGULIES JOHN J. GIBBONS MACARTHUR JUSTICE CENTER LAWRENCE S. LUSTBERG NORTHWESTERN UNIVERSITY GIBBONS P.C. LAW SCHOOL One Gateway Center 357 East Chicago Avenue Newark, NJ 07102 Chicago, IL 60611 973-596-4500 312-503-0890 MARK S. SULLIVAN BAHER AZMY CHRISTOPHER G. KARAGHEUZOFF SETON HALL LAW SCHOOL JOSHUA COLANGELO-BRYAN CENTER FOR SOCIAL JUSTICE DORSEY & WHITNEY LLP 833 McCarter Highway 250 Park Avenue Newark, NJ 07102 New York, NY 10177 973-642-8700 212-415-9200 DAVID H. REMES MARC D. FALKOFF COVINGTON & BURLING COLLEGE OF LAW 1201 Pennsylvania Ave., N.W. NORTHERN ILLINOIS Washington, DC 20004 UNIVERSITY 202-662-5212 DeKalb, IL 60115 815-753-0660 PAMELA CHEPIGA SCOTT SULLIVAN ANDREW MATHESON DEREK JINKS KAREN LEE UNIVERSITY OF TEXAS SARAH HAVENS SCHOOL OF LAW ALLEN & OVERY LLP RULE OF LAW IN WARTIME 1221 Avenue of the Americas PROGRAM New York, NY 10020 727 E.
    [Show full text]
  • Who Are the Guantánamo Detainees? CASE SHEET 15 Yemeni National: Abdulsalam Al-Hela 11 January 2005 AI Index: AMR 51/206/2005
    USA Who are the Guantánamo detainees? CASE SHEET 15 Yemeni national: Abdulsalam al-Hela 11 January 2005 AI Index: AMR 51/206/2005 Full name: Abdulsalam al-Hela Nationality: Yemeni Occupation: Businessman Age: 34 Family status: Married with two children “Contact with him suddenly stopped…when we called him, his mobile phone rang but there was no answer”. Abdulsalam al-Hela’s brother, talking of his brother’s “disappearance” Abdulsalam al-Hela is a businessman from Sana’a, Yemen. In September 2002 he is believed to have travelled to Egypt for a meeting with Arab Contractors, an Egyptian construction firm for which he was the Yemeni representative. While there he phoned his family regularly. On the last occasion he called, his brother stated that he sounded nervous and worried, and that he had to go to a meeting. He was unwilling to say any more over the telephone. It was last time Abdulsalam al-Hela’s family would hear from him for over a year, and then it would be through a letter smuggled out of a prison in Afghanistan. Abdulsalam al-Hela appears to have been abducted by the Egyptian authorities and handed over to US officials. Abdulsalam al-Hela is convinced that the USA and Egypt conspired to lure him to Egypt with the express intention of “disappearing” him in order to interrogate him about his contacts in Yemen. As a result he became a victim of the US practice of rendition and secret detention, being taken from country to country without any recourse to a court, access to lawyers or contact with his family.
    [Show full text]
  • The Ethics of Interrogation and the Rule of Law Release Date: April 23, 2018
    Release Date: April 23, 2018 CERL Report on The Ethics of Interrogation and the Rule of Law Release Date: April 23, 2018 CERL Report on The Ethics of Interrogation and the Rule of Law I. Introduction On January 25, 2017, President Trump repeated his belief that torture works1 and reaffirmed his commitment to restore the use of harsh interrogation of detainees in American custody.2 That same day, CBS News released a draft Trump administration executive order that would order the Intelligence Community (IC) and Department of Defense (DoD) to review the legality of torture and potentially revise the Army Field Manual to allow harsh interrogations.3 On March 13, 2018, the President nominated Mike Pompeo to replace Rex Tillerson as Secretary of State, and Gina Haspel to replace Mr. Pompeo as Director of the CIA. Mr. Pompeo has made public statements in support of torture, most notably in response to the Senate Intelligence Committee’s 2014 report on the CIA’s use of torture on post-9/11 detainees,4 though his position appears to have altered somewhat by the time of his confirmation hearing for Director of the CIA, and Ms. Haspel’s history at black site Cat’s Eye in Thailand is controversial, particularly regarding her oversight of the torture of Abd al-Rahim al-Nashiri5 as well as her role in the destruction of video tapes documenting the CIA’s use of enhanced interrogation techniques.6 In light of these actions, President Trump appears to be signaling his support for legalizing the Bush-era techniques applied to detainees arrested and interrogated during the war on terror.
    [Show full text]
  • Forensic Mental Health Evaluations in the Guantánamo Military Commissions System: an Analysis of All Detainee Cases from Inception to 2018 T ⁎ Neil Krishan Aggarwal
    International Journal of Law and Psychiatry 64 (2019) 34–39 Contents lists available at ScienceDirect International Journal of Law and Psychiatry journal homepage: www.elsevier.com/locate/ijlawpsy Forensic mental health evaluations in the Guantánamo military commissions system: An analysis of all detainee cases from inception to 2018 T ⁎ Neil Krishan Aggarwal Clinical Psychiatry, Department of Psychiatry, Columbia University Medical Center, Committee on Global Thought, Columbia University, New York State Psychiatric Institute, United States ABSTRACT Even though the Bush Administration opened the Guantánamo Bay detention facility in 2002 in response to the September 11, 2001 attacks in the United States, little remains known about how forensic mental health evaluations relate to the process of detainees who are charged before military commissions. This article discusses the laws governing Guantánamo's military commissions system and mental health evaluations. Notably, the US government initially treated detaineesas“unlawful enemy combatants” who were not protected under the US Constitution and the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment, allowing for the use of “enhanced interrogation techniques.” In subsequent legal documents, however, the US government has excluded evidence obtained through torture, as defined by the US Constitution and the United Nations Convention Against Torture. Using open-source document analysis, this article describes the reasons and outcomes of all forensic mental health evaluations from Guantánamo's opening to 2018. Only thirty of 779 detainees (~3.85%) have ever had charges referred against them to the military commissions, and only nine detainees (~1.16%) have ever received forensic mental health evaluations pertaining to their case.
    [Show full text]
  • Guantanamo and Citizenship: an Unjust Ticket Home
    Case Western Reserve Journal of International Law Volume 37 Issue 2 Article 19 2006 Guantanamo and Citizenship: An Unjust Ticket Home Rory T. Hood Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Rory T. Hood, Guantanamo and Citizenship: An Unjust Ticket Home, 37 Case W. Res. J. Int'l L. 555 (2006) Available at: https://scholarlycommons.law.case.edu/jil/vol37/iss2/19 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. GUANTANAMO AND CITIZENSHIP: AN UNJUST TICKET HOME? Rory T. Hood t "Trying to get Uganda to take an interest is pretty difficult; [JamalAbdul- lah Kiyemba has] been here since he was 14. 1 am asking the [Foreign Of- fice] whether they will allow him to apply for citizenship from Guan- tanamo Bay. If you are out of the countryfor more than two years, it can be counted against you. He probably has now been-but not of his own free will.' -Louise Christian - Atty. representing Jamal Abdullah Kiyemba I. INTRODUCTION Jamal Abdullah Kiyemba, Bisher al-Rawi, Jamil al-Banna, Shaker Abdur-Raheem Aamer, and Omar Deghayes are currently in the custody of the United States government at Guantanamo Bay, Cuba.2 A citizen of Uganda, an Iraqi exile, a Jordanian refugee, a Saudi citizen, and a Libyan exile, respectively, these men form an unlikely group; yet, each share one common trait.
    [Show full text]
  • Omar Khadr's Legal Odyssey: the Erasure of Child Soldier As a Legal
    GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW(DO NOT DELETE) 4/18/2018 1:10 PM OMAR KHADR’S LEGAL ODYSSEY: THE ERASURE OF CHILD SOLDIER AS A LEGAL CATEGORY M. Mehdi Ali* TABLE OF CONTENTS I. INTRODUCTION ............................................................................... 348 II. FACTS .............................................................................................. 349 III. LEGAL BACKGROUND ..................................................................... 351 IV. LEGAL ARGUMENTS ........................................................................ 359 V. CONCLUSION ................................................................................... 367 * J.D., Stanford Law School; M.A., Stanford University; B.A., Stanford University. I am deeply grateful to my parents, Nisar and Mehnaz, and my wife, Sarah, for always encouraging me throughout my academic career. I am also thankful to my siblings, Hadi and Heraa, for their unwavering support, and for their excellent comments and suggestions to an earlier draft of this Article. Lastly, it was a great privilege to work with the editors at the Georgia Journal of International and Comparative Law, and I am indebted to them for their hard work and thoughtful feedback. 347 GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW (DO NOT DELETE) 4/18/2018 1:10 PM 348 GA. J. INT’L & COMP. L. [Vol. 46:347 I. INTRODUCTION After the terrorist attacks of September 11, 2001, U.S. officials warned the American public that they were facing a “new kind of war.”1 The scale of the attacks, conducted by a foreign enemy on the American homeland, allowed the administration to exceed institutional restraints built into the political system. In the name of security, the government launched two wars, rounded up thousands of individuals on the basis of national origin, and dramatically altered long-held notions of liberty and due process.
    [Show full text]
  • United States District Court Eastern District Of
    Case 2:15-cv-00286-JLQ ECF No. 239 filed 08/07/17 PageID.9393 Page 1 of 43 1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON 4 5 SULEIMAN ABDULLAH SALIM, et al., ) ) 6 ) No. CV-15-0286-JLQ Plaintiffs, ) 7 ) MEMORANDUM OPINION ) RE: MOTIONS FOR SUMMARY 8 vs. ) JUDGMENT ) 9 ) JAMES E. MITCHELL and JOHN ) 10 JESSEN, ) ) 11 Defendants. ) ___________________________________ ) 12 BEFORE THE COURT are Defendants’ Motion for Summary Judgment (ECF No. 13 169), Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 178), and Defendants’ 14 Motion to Exclude (ECF No. 198). Response and Reply briefs have been filed and 15 considered. The parties have submitted a voluminous record of over 4,000 pages of 16 evidentiary exhibits. The court heard oral argument on the Motions on July 28, 2017. 17 James Smith, Henry Schuelke, III, Brian Paszamant, and Christopher Tompkins appeared 18 for Defendants James Mitchell and John Jessen. Hina Shamsi, Steven Watt, Dror Ladin, 19 Lawrence Lustberg, and Jeffry Finer appeared for Plaintiffs Suleiman Abdullah Salim, 20 Mohamed Ahmed Ben Soud, and Obaid Ullah. The court issued its preliminary oral 21 ruling. This Opinion memorializes and supplements the court’s oral ruling. 22 I. Introduction and Factual Allegations from Complaint 23 The Complaint in this matter alleges Plaintiffs Suleiman Abdullah Salim (“Salim”), 24 Mohamed Ahmed Ben Soud (“Soud”), and Gul Rahman (“Rahman”)1(collectively herein 25 Plaintiffs) were the victims of psychological and physical torture. Plaintiffs are all 26 27 1Obaid Ullah is the personal representative of the Estate of Gul Rahman. 28 ORDER - 1 Case 2:15-cv-00286-JLQ ECF No.
    [Show full text]
  • Enemy Combatants, the Courts, and the Constitution
    Oklahoma Law Review Volume 56 Number 3 1-1-2003 Enemy Combatants, the Courts, and the Constitution Roberto Iraola Follow this and additional works at: https://digitalcommons.law.ou.edu/olr Part of the Criminal Procedure Commons, International Law Commons, and the Military, War, and Peace Commons Recommended Citation Roberto Iraola, Enemy Combatants, the Courts, and the Constitution, 56 OKLA. L. REV. 565 (2003), https://digitalcommons.law.ou.edu/olr/vol56/iss3/3 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in Oklahoma Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. OKLAHOMA LAW REVIEW VOLUME 56 FALL 2003 NUMBER 3 ENEMY COMBATANTS, THE COURTS, AND THE CONSTITUTION ROBERTO IRAOLA* L Introduction Three days after the September 11 attacks, when al Qaeda terrorists hijacked and crashed four commercial jetliners into the World Trade Center, the Pentagon, and the Pennsylvania countryside, killing over 3100 people,' Congress passed a joint resolution authorizing the use of military force against those responsible.2 President George W. Bush responded by sending troops to Afghanistan to fight al Qaeda and its supporter, the Taliban regime.' During the military operation that ensued, thousands of prisoners were captured by allied and American forces.4 Many of those captured are * Senior Advisor to the Deputy Assistant Secretary for Law Enforcement and Security, Department of the Interior. J.D., 1983, Catholic University Law School. The views expressed herein are solely those of the author.
    [Show full text]
  • Approved for Public Filing by the CSO V
    Case 1:05-cv-02386-UNA Document 84 Filed 07/19/2006 Page 1 of 9 Approved for Public Filing by the CSO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMER MOHAMMON, et ai., ORAL ARGUMENT REQUESTED Petitioners, v. Civil Action No. 05 CV 2386 (RBW) (AK) GEORGE W. BUSH, et aZ., Respondents. EMERGENCY MOTION OF PETITIONERS ABDUL GHAFFAR AND ADEL NOORI FOR ACCESS TO COUNSEL AND TO HOLD RESPONDENTS IN CONTEMPT KU ::m!643 2 Case 1:05-cv-02386-UNA Document 84 Filed 07/19/2006 Page 2 of 9 Approved for Public Filing by the CSO Petitioners Abdul Rahman aJk/a Abdul GhatTar (ISN 281) and Adel LNU aJk/a Adel Noori (ISN 584), by and through their undersigned counsel, respectfully submit this emergency motion for access to their counsel, who are scheduled to visit the U.S. Naval Station at Guantiinamo Bay, Cuba ("Guantanamo"), between July 24 and July 28, 2006. Petitioners also seek the sanction of contempt for Respondents' refusal to comply with the Amended Protective Order and allow them access to their counsel - without a good faith basis, and apparently solely for the purpose of delay. INTRODUCTION Petitioners are Uighurs, a Turkic Muslim minority group native to the Xianjiang Autonomous Region, in western China. We have reason to believe and Respondents have not denied - that Petitioners may have been cleared for release from Guantiinamo. Respondents nonetheless refuse to aJlow Petitioners access to their counsel, who seek, in part, to confirm that Petitioners have been exonerated. Undersigned cO\ll1sel filed a notice of appearance in this case on June 15, 2006.
    [Show full text]
  • Detainee Treatment Act of 2005
    Recent Developments DETAINEE TREATMENT ACT OF 2005 INTRODUCTION Reports of Iraqi prisoner abuse by U.S. troops emerged as early as May 15, 2003,1 but it was not until April 28, 2004 that pictures of such abuse from the Abu Ghraib prison surfaced. 2 The Abu Ghraib scandal intensified public outcry and media inquiry into the tactics and legal justifications used by the George W. Bush Administration in executing the war in Iraq and the war on terrorism. 3 Internal memoranda written by various members of the Bush Administration materialized, revealing controversial interpretations of domestic and international law that led to ambiguities in the standards for detainee treatment. Such ambiguity led to policy choices that resulted in the shocking and morally reprehensible treatment of detainees, as captured in the Abu Ghraib pictures. On October 5, 2005, the Senate responded by approving an amendment ("S.Amdt. 1977") 4 to the Department of Defense ("DOD") appropriations bill for 2006 that would establish a clear source of approved interrogation tech- niques for use on detainees in DOD custody, and make clear that geographic considerations did not limit the prohibition on the use of cruel, inhuman, or degrading treatment or punishment ("CID treatment"). 5 The Bush Administra- tion threatened to veto the appropriations bill over S.Amdt. 1977, but the amendment remained in the bill after a compromise was reached, resulting in the addition of three other clauses related to detainee treatment: legal defenses 1. The May 15, 2003 report was made by Amnesty International at a press conference in London. Out of Sight, Out ofMind, COLUM.
    [Show full text]
  • Al-Qaeda & Taliban Unlawful Combatant
    AL-QAEDA & TALIBAN UNLAWFUL COMBATANT DETAINEES,..., 55 A.F. L. Rev. 1 55 A.F. L. Rev. 1 Air Force Law Review 2004 Article AL-QAEDA & TALIBAN UNLAWFUL COMBATANT DETAINEES, UNLAWFUL BELLIGERENCY, AND THE INTERNATIONAL LAWS OF ARMED CONFLICT Lieutenant Colonel (s) Joseph P. “Dutch” Bialkea1 Copyright © 2004 by Lieutenant Colonel (s) Joseph P. “Dutch” Bialke I. INTRODUCTION International Obligations & Responsibilities and the International Rule of Law The United States (U.S.) is currently detaining several hundred al-Qaeda and Taliban unlawful enemy combatants from more than 40 countries at a multi-million dollar maximum-security detention facility at the U.S. Naval Base in Guantanamo Bay, Cuba. These enemy detainees were captured while engaged in hostilities against the U.S. and its allies during the post-September 11, 2001 international armed conflict centered primarily in Afghanistan. The conflict now involves an ongoing concerted international campaign in collective self-defense against a common stateless enemy dispersed throughout the world. Domestic and international human rights organizations and other groups have criticized the U.S.,1 arguing that al-Qaeda and Taliban detainees in Cuba should be granted Geneva Convention III prisoner of war (POW)2status. They contend broadly that pursuant to the international laws of armed conflict (LOAC), combatants captured during armed conflict must be treated equally and conferred POWstatus. However, no such blanket obligation exists in international law. There is no legal or moral equivalence in LOAC between lawful combatants and unlawful combatants, or between lawful belligerency *2 and unlawful belligerency (also referred to as lawful combatantry and unlawful combatantry).
    [Show full text]
  • Military Commissions Act of 2006
    MILITARY COMMISSIONS ACT OF 2006 LEGISLATIVE HISTORY The Military Commissions Act was prompted, in part, by the U.S. Supreme Court’s June 2006 ruling in Hamdan v. Rumsfeld which rejected the President’s creation of military commissions by executive fiat and held unequivocally that the protections of Common Article 3 of the Geneva Conventions applies in the context of the conflict with Al Qaeda. According to Administration statements, the Act was also prompted by concerns among CIA interrogators that the Detainee Treatment Act's prohibition of torture and coercive interrogations implied potential liability for the perpetrators and disbanding of the program of interrogation in secret CIA prisons. The MCA was passed in the House by a vote of 250 to 70. 1 The law was passed in the Senate by a vote of 65 to 34. 2 Five proposed amendments failed in the Senate by a narrow margin. Senator Specter (R-PA) proposed an amendment which would have removed the MCA’s jurisdiction- stripping provision. This amendment failed by a vote of 51-48. 3 The MCA was signed into law by President Bush on October 17, 2006. THE LAW The Military Commissions Act 4: Creates a broad definition of “unlawful enemy combatant” [Sec. 3(a)(1), amending § 948(a)(1)]; Severely limits the avenues of judicial review for non-citizens held in U.S. custody , aiming to eliminate both habeas and post-release civil challenges, thus effectively sanctioning indefinite detention and abusive interrogations of non-citizens and limiting accountability [Sec. 7]; Permits coercive interrogations and torture by creating narrow re-definitions, limiting judicial review, and allowing for statements obtained under torture or coercion to be used in prosecutions in some instances [Sec.
    [Show full text]