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THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB |
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THE COMMITTEE ON INTERNATIONAL HUMAN RIGHTS Martin S. Flaherty, Chair*
THE COMMITTEE ON MILITARY AFFAIRS AND JUSTICE Miles P. Fischer, Chair*
* Members of
the Subcommittee who prepared the report. The views expressed herein are solely those of the Association and the participating Committees. The Committee on International Human Rights and Military Affairs and Justice would like to thank the following persons for their assistance in the preparation of the report: John Cerone (Executive Director, War Crimes Research Office, Washington College of Law, American University); Ken Hurwitz (Human Rights First); Professor Marco Sassňli (University of Geneva, professor of international law); Brigitte Oederlin and Gabor Rona (International Committee of the Red Cross); Paul, Weiss, Rifkind, Wharton & Garrison LLP (“Paul Weiss”) associates Katarina Lawergren and Marc Miller and former Paul Weiss associate Matias Milet; and New York University School of Law students Ari Bassin, Amber A. Baylor, Angelina Fisher, Tzung-lin Fu, David R. Hoffman, Jane Stratton and Stephanie S. Welch; and New York Law School student Holly Higgins. This report could not have been completed without the indefatigable efforts of Paul Weiss associate Liza Velazquez in helping edit the many drafts of the Report and consolidating the many views and comments of the Committees and Subcommittee into a coherent whole. December 26, 2002 President George W. Bush Dear President Bush: Human Rights Watch is deeply concerned by allegations of torture and other mistreatment of suspected al Qaeda detainees described in The Washington Post ("U.S. Decries Abuse hut Defends Interrogations") on December 26. The allegations, if true, would place the United States in violation of some of the most fundamental prohibitions of international human rights law. Any U.S. government official who is directly involved or complicit in the torture or mistreatment of detainees, including any official who knowingly acquiesces in the commission of such acts, would be subject to prosecution worldwide. Human Rights Watch urges you to take immediate steps to clarify that the use of torture is not U.S. policy, investigate The Washington Post's allegations, adopt all necessary measures to end any ongoing violations of international law, stop the rendition of detainees to countries where they are likely to be tortured, and prosecute those implicated in such abuse. I. Prohibitions Against Torture The Washington Post reports that persons held in the CIA interrogation centers at Bagram air base in Afghanistan are subject to "stress and duress" techniques, including "standing or kneeling for hours" and being "held in awkward, painful positions." The Post notes that the detention facilities at Bagram and elsewhere, such as at Diego Garcia, are not monitored by the International Committee of the Red Cross, which has monitored the U.S. treatment of detainees at Guantanamo Bay. Cuba. The absolute prohibition against torture is a fundamental and well-established precept of customary and conventional international law. Torture is never permissible against anyone, whether in times of peace or of war. The prohibition against torture is firmly established under international human rights law. It is prohibited by various treaties to which the United States is a party, including the International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified in 1994. Article 7 of the ICCPR states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." The right to be protected from torture is non-derogable, meaning that it applies at all times, including during public emergencies or wartime. International humanitarian law (the laws of war), which applies during armed conflict, prohibits the torture or other mistreatment of captured combatants and others in captivity, regardless of their legal status. Regarding prisoners-of-war, Article 17 of the Third Geneva Convention of 1949 states: "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind." Detained civilians are similarly protected by Article 32 of the Fourth Geneva Convention. The United States has been a party to the 1949 Geneva Conventions since 1955. The United States does not recognize captured al Qaeda members as being protected by the 1949 Geneva Conventions, although Bush administration officials have insisted that detainees will be treated humanely and in a manner consistent with Geneva principles. However, at minimum, all detainees in wartime, regardless of their legal status, are protected by customary international humanitarian law. Article 75 ("Fundamental Guarantees") of the First Additional Protocol to the Geneva Conventions, which is recognized as restating customary International law, provides that "torture of all kinds, whether physical or mental" against "persons who are in the power of a party to the conflict and who do not benefit from more favorable treatment under the [Geneva] Conventions." shall "remain prohibited at any time and in any place whatsoever, whether committed by civilian or military agents." "[C]ruel treatment and torture" of detainees is also prohibited under common Article 3 to the 1949 Geneva Conventions, which is considered indicative of customary international law. II. Possible U.S. Complicity in Torture It is a violation of international law not only to use torture directly, but also to be complicit in torture committed by other governments. The Post reports being told by U.S. officials that ''[t]housands have been arrested and held with U.S. assistance in countries known for brutal treatment of prisoners." The Convention against Torture provides in Article 4 that all acts of torture, including "an act by any person which constitutes complicity or participation in torture," is an offense "punishable by appropriate penalties which take into account their grave nature." The Post article describes the rendition of captured al Qaeda suspects from U.S. custody to other countries where they are tortured or otherwise mistreated. This might also be a violation of the Convention against Torture, which in Article 3 states: "No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.... For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights." The U.S. Department of State annual report on human rights practices has frequently criticized torture in countries where detainees may have been sent. These include Uzbekistan, Pakistan, Egypt, Jordan and Morocco. The United States thus could not plausibly claim that it was unaware of the problem of torture in these countries. III. International Prosecutions for Torture and Command Responsibility Direct involvement or complicity in torture, as well as the failure to prevent torture, may subject U.S. officials to prosecution under intemational1aw. The wilful torture or inhuman treatment of prisoners-of-war or other detainees, including "wilfully causing great suffering or serious injury to body or health," are "grave breaches" of the 1949 Geneva Conventions, commonly known as war crimes. Grave breaches are subject to universal jurisdiction, meaning that they can be prosecuted in any national criminal court and as well as any international tribunal with appropriate jurisdiction. The Convention against Torture obligates States Parties to prosecute persons within their jurisdiction who are implicated or complicit in acts of torture. This obligation includes the prosecution of persons within their territory who committed acts of torture elsewhere and have not be extradited under procedures provided in the convention. Should senior U.S. officials become aware of acts of torture by their subordinates and fail to take immediate and effective steps to end such practices, they too could be found criminally liable under international law. The responsibility of superior officers for atrocities by their subordinates is commonly known as command responsibility. Although the concept originated in military law, it now is increasingly accepted to include the responsibility of civil authorities for abuses committed by persons under their direct authority. The doctrine of command responsibility has been upheld in recent decisions by the international criminal tribunals for the former Yugoslavia and for Rwanda. There are two forms of command responsibility: direct responsibility for orders that are unlawful and imputed responsibility, when a superior knows or should have known of crimes committed by a subordinate acting on his own initiative and fails to prevent or punish them. All states are obliged to bring such people to justice. * * * The allegations made by The Washington Post are extraordinarily serious. They have put the United States on notice that acts of torture may be taking place with U.S. participation or complicity. That creates a heightened duty to respond preventively. As an immediate step, we urge that you issue a presidential statement clarifying that it is contrary to U.S. policy to use or facilitate torture. The Post's allegations should be investigated and the findings made public. Should there be evidence of U.S. civilian or military officials being directly involved or complicit in torture, or in the rendition of persons to places where they are likely to be tortured, you should take immediate steps to prevent the commission of such acts and to prosecute the individuals who have ordered, organized, condoned, or carried them out. The United States also has a duty to refrain from sending persons to other countries with a history of torture without explicit and verifiable guarantees that no torture or mistreatment will occur. Thank you for your attention to these concerns. Sincerely, Kenneth Roth Cc: Colin Powell, Secretary of State January 31, 2003 The Honorable George W. Bush Dear President Bush: We are writing to you on a matter of great concern. As you are no doubt aware, on December 26th The Washington Post reported that your Administration has used, tacitly condoned or facilitated torture by third countries in the interrogation of prisoners. These reports are so flagrantly at odds with your many statements about the importance of human rights that we trust that you are equally disturbed by it. You have repeatedly declared that the United States "will always stand firm for the nonnegotiable demands of human dignity." Surely there is no more basic and less negotiable requirement of human dignity than the right to be free of torture or cruel, inhuman or degrading treatment. As you know, under the Torture Convention "no exceptional circumstances whatsoever" may be invoked to justify torture and no party may return or extradite a person to another state where there are "substantial grounds for believing that he would be in danger of being subjected to torture." Likewise, under the Covenant on Civil and Political Rights, "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." As you declared in your State of the Union address, these solemn commitments of the United States are non-negotiable; in legal terms, there can be no derogation from them. You may also know that it was your father's Administration that sought and received overwhelming Senate support for the United States to ratify these two treaties. The Administration's response to the outrageous statements made by numerous unnamed officials to The Post's reporters concerning United States use or tolerance of torture and cruel, inhuman and degrading treatment has thus far been wholly inadequate. Whatever the truth of The Post's allegations, without a more authoritative response to this high-profile story the world will conclude that the United States is not practicing what it preaches. America's authority as a champion of human rights will be seriously damaged. What is clearly needed in this instance are unequivocal statements by you and your Cabinet officers that torture in any form or manner will not be tolerated by this Administration, that any US official found to have used or condoned torture will be held accountable, and that the United States would neither seek nor rely upon intelligence obtained through torture in a third country. These statements need to be accompanied by clear written guidance applicable to everyone engaged in the interrogation and rendition of prisoners strictly prohibiting the use or tolerance of torture or cruel, inhuman or degrading treatment of prisoners and mandating full compliance with the Geneva conventions requirements for the treatment of prisoners. We urge you in the strongest terms to take this opportunity to demonstrate that torture and cruel, inhuman and degrading treatment is, in fact as well as word, non-negotiable. Sincerely, William Schulz Kenneth Roth Gay McDougall Louise Kautrow Michael Posner Robin Phillips Len Rubenstein Todd Howland NATIONAL CONSORTIUM OF February 5, 2003 President George Bush Dear President Bush: The National Consortium of Torture Treatment Programs consists of 33 programs throughout the United States that provide medical and mental health care, as well as legal and social services, to survivors of politically motivated torture. I am writing on behalf of our membership to request a dialogue with the Administration regarding recent allegations published in the Washington Post that certain U.S. practices, including "stress and duress tactics" and "rendering" of detainees to foreign intelligence services, may amount to or result in torture. Members of the Consortium commend your strong denunciation of torture in Iraq during this week's State of the Union address. As health professionals caring for torture victims, we have witnessed first-hand the devastating impact torture has on the health and well-being of its victims. Every day we see the after-effects of the abuses you described during your address. We see the scars from shackles, the marks from cigarette bums inflicted during interrogation, the wounds and broken bones from severe beatings, and the disfiguration from acid or flames. We listen to stories of shame and humiliation, of haunting nightmares and memories that will not go away, and of lives shattered by extreme cruelty. The individuals we care for are among the estimated 500,000 torture survivors now living in the United States. Iraq is only one of 100 countries represented in our client populations last year. Sadly, torture is perpetrated or condoned in nations across the world. The United States has stated its commitment to end torture in our world, and we commend the Department of State for its continuing efforts in this regard. This nation has also demonstrated its commitment to healing torture survivors who live in this country and abroad through passage of the Torture Victims Relief Act in 1998 and subsequent appropriations to the U.S. Office of Refugee Resettlement, the U.S. Agency for International Development, and the United Nations Voluntary Fund for Victims of Torture. In order to maintain our country's commitment to end torture and support healing, we are deeply concerned by the allegations published in the Washington Post. The National Consortium of Torture Treatment Programs takes no position on the credibility of these allegations. We urge the United States government to fully investigate the allegations of torture of detainees, and to place on the public record our nation's policies and practices with respect to torture. We request a meeting to discuss a response to the Washington Post allegations. We suggest that participants might include Anthony Banbury, William Haynes, William Taft, IV, and Lorne Craner. I hope a member of your staff will contact my office to schedule such a meeting. Mr. President, torture undermines the fabric of society through fear and terror. As the U.S. Congress articulated in its resolution of June 20, 2001, "When one individual is tortured, the scars inflicted by such horrific treatment are not only found in the victim but in the global system, as the use of torture undermines, debilitates, and erodes the very essence of that system." We urge you to authorize an investigation of the allegations published in the Washington Post, to communicate the results of that investigation to the American people, and to ensure that the United States does not and will not participate in torture. Respectfully, Ernest Duff cc: Anthony Banbury, Acting Senior
Director for Democracy, Human Rights and 1nternational Operations,
National Security Council, Fax (202) 456-9140 PATRICK LEAHY COMMITTEES UNITED STATES SENATE June 2, 2004 The Honorable Condoleezza Rice Dear Dr. Rice: Over the past several months, unnamed Administration officials have suggested in several press accounts that detainees held by the United States in the war on terrorism have been subjected to "stress and duress" interrogation techniques. including beatings, lengthy sleep and food deprivation, and being shackled in painful positions for extended periods of time. Our understanding is that these statements pertain in particular to interrogations conducted by the Central Intelligence Agency in Afghanistan and other locations outside the United States. Officials have also stated that detainees have been transferred for interrogation to governments that routinely torture prisoners. These assertions have been reported extensively in the international media in ways that could undermine the credibility of American efforts to combat torture and promote the rule of law, particularly in the Islamic world. I appreciate President Bush's statement, during his recent meeting with U.N. High Commissioner for Human Rights Sergio De Mello, that the United States does not, as a matter of policy, practice torture. I also commend the Administration for its willingness to meet with and respond to the concerns of leading human rights organizations about reports of mistreatment of detainees. At the same time, I believe the Administration's response thus far, including in a recent letter to Human Rights Watch from Department of Defense General Counsel William Haynes, while helpful, leaves important questions unanswered. The Administration understandably does not wish to catalogue the interrogation techniques used by U.S. personnel in fighting international terrorism. But it should affirm with clarity that America upholds in practice the laws that prohibit the specific forms of mistreatment reported in recent months. The need for a clear and thorough response from the Administration is all the greater because reports of mistreatment initially arose not from outside complaints, but from statements made by administration officials themselves. With that in mind, I would appreciate your answers to the following questions: First, Mr. Haynes' letter states that when questioning enemy combatants, U.S. personnel are required to follow "applicable laws prohibiting torture." What are those laws? Given that the United States has ratified the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT), is this Convention one of those laws, and does it bind U.S. personnel both inside and outside the United States? Second, does the Administration accept that the United States has a specific obligation under the CAT not to engage in cruel, inhuman and degrading treatment? Third, when the United States ratified the CAT, it entered a reservation regarding its prohibition on cruel, inhuman and degrading treatment, stating that it interprets this term to mean "the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth amendments to the Constitution." Are all U.S. interrogations of enemy combatants conducted in a manner consistent with this reservation? Fourth, in its annual Country Reports on Human Rights Practices, the State Department has repeatedly condemned many of the same "stress and duress" interrogation techniques that U.S. personnel are alleged to have used in Afghanistan. Can you confirm that the United States is not employing the specific methods of interrogation that the State Department has condemned in countries such as Egypt, Iran, Eritrea, Libya, Jordan and Burma? Fifth, the Defense Department acknowledged in March that it was investigating the deaths from blunt force injury of two detainees who were held at Bagram air base in Afghanistan. What is the status of that investigation and when do you expect it to be completed? Has the Defense Department of the CIA investigated any other allegations of torture or mistreatment of detainees, and if so, with what result? What steps would be taken if any U.S. personnel were found to have engaged in unlawful conduct? Finally, Mr. Haynes' letter offers a welcome clarification that when detainees are transferred to other countries, "U.S. government instructions are to seek and obtain appropriate assurances that such enemy combatants are not tortured." How does the Administration follow up to determine if these pledges of humane treatment are honored in practice, particularly when the governments in question are known to practice torture? I believe these questions can be answered without revealing sensitive information or in any way undermining the fight against international terrorism. Defeating terrorism is a national security priority, and no one questions the imperative of subjecting captured terrorists to thorough and aggressive interrogations consistent with the law. The challenge is to carry on this fight while upholding the values and laws that the distinguish us from the enemy we are fighting. As President Bush has said, America is not merely struggling to defeat a terrible evil, but to uphold "the permanent rights and the hopes of mankind." I hope you agree that clarity on this fundamental question of human rights and human dignity is vital to that larger struggle. Thank you for your assistance. Sincerely, PATRICK LEAHY United States Senator THE ASSOCIATION OF THE BAR STANDING COMMITTEE ON MILITARY AFFAIRS AND JUSTICE COMMITTEE CHAIR COMMITIEE SECRETARY June 4, 2003 Scott W. Muller Dear Mr. Muller: We are writing on behalf of the Committees on International Human Rights and Military Affairs & Justice of the Association of the Bar of the City of New York. Founded in 1870, the Association is an independent non-governmental organization with a membership of more than 22,000 lawyers, judges, law professors and government officials, principally from New York City but also from throughout the United States and from 40 other countries. The Committee on International Human Rights investigates and reports on human rights conditions around the world. The Committee on Military Affairs & Justice engages in matters of policy and law relating to the United States Armed Forces. The two committees are investigating reports about the treatment of detainees subject to CIA interrogation at locations outside of the United States, including the centers at Bagram air base in Afghanistan and on the island of Diego Garcia and at Guantanomo. Over the past six months, several newspapers (the Washington Post, The New York Times and the Wall Street Journal) have reported allegations of abusive treatment by U.S. interrogators of people detained at Bagram. As described in these reports, some of the abusive treatment would qualify under international law as torture or cruel, inhuman and degrading treatment. In addition, the reports state that in some instances, people suspected of having links to terrorism have been apprehended by U.S. officials outside of the United States and rendered to countries where they can be subject to interrogation tactics -- including torture -- that are illegal in the United States. Mr. William J. Haynes II, General Counsel of the Defense Department, recently wrote in response to a letter from the Executive Director of Human Rights Watch to President Bush raising these issues -- that "[w]hen questioning enemy combatants, U.S. personnel are required to follow [United States] policy and applicable laws prohibiting torture." In addition, Mr. Haynes confirmed that in the event of a transfer of "detained enemy combatants to other countries for continued detention on [the U.S. Government's] behalf, U.S. Government instructions are to seek and obtain appropriate assurances that such enemy combatants are not tortured." Our Committees would like an opportunity to review the Directorate of Operations instructions and any other relevant materials giving guidance to interrogators, so that we may assess the clarity and specificity of the instructions given to U.S. interrogators and other U.S. personnel responsible for handling detainees. It is essential that U.S. personnel understand precisely those actions which are permissible and those which are prohibited by law. Our Committees, therefore, would appreciate it if your office could send us copies of the Directorate of Operations instructions and any other relevant material providing guidance to interrogators. We are requesting only unclassified materials or classified materials redacted to remove classified information. After we have had an opportunity to review the materials, we would like to arrange a meeting with you to discuss these issues further. We look forward to hearing from you. Respectfully, MILES P. FISCHER, CHAIR SCOTT HORTON, CHAIR PATRICK LEAHY COMMITTEES UNITED STATES SENATE September 9, 2003 Mr. William J. Haynes, II Dear Mr. Haynes: Thank you for your June 25, 2003, letter concerning U.S. policy with regard to the treatment of detainees held by the United States. I very much appreciate your clear statement that it is the policy of the United States to comply with all of its legal obligations under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). I also welcome your statement that it is United States policy to treat all detainees and conduct all interrogations, wherever they may occur, in a manner consistent with our government's obligation, under Article 16 of the CAT, "to prevent other acts of cruel, inhuman, or degrading treatment or punishment" as prohibited under the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. This statement of policy rules out the use of many of the "stress and duress" interrogation techniques that have been alleged in press reports over the last several months, including beatings, lengthy sleep and food deprivation, and shackling detainees in painful positions for extended periods of time. It should also go a long way towards answering concerns that have been expressed by our friends overseas about the treatment of detainees in U.S. custody. It should strengthen our nation's ability to lead by example in the protection of human rights around the world, and our ability to protect Americans, including our service members, should they be detained abroad. At the same time, the ultimate credibility of this policy will depend on its implementation by U.S. personnel around the world. In that spirit, I would appreciate it if you could clarify how the administration's policy to comply with the CAT is communicated to those personnel directly involved in detention and interrogation? As you note in your letter, the U.S. obligation under Article 16 of the CAT is to "undertake ... to prevent" cruel, inhuman or degrading treatment or punishment. What is the administration doing to prevent violations? Have any recent directives, regulations or general orders been issued to implement the policy your June 25 letter describes? If so, I would appreciate receiving a copy. I understand that interrogations conducted by the U.S. military are governed at least in part by Field Manual 34-52, which prohibits "the use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind." This field manual rightly stresses that "the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear." Are there further guidelines that in any way add to, define, or limit the prohibitions contained in this field manual? What mechanisms exist for ensuring compliance with these guidelines? Most important, I hope you can assure me that interrogators working for other agencies. including the CIA, operate from the same guidelines as the Department of Defense. If CIA or other interrogation guidelines in use by any person working for or on behalf of the U.S. government differ, could you clarify how, and why? I am pleased that before handing over detainees for interrogation to third countries, the United States obtains specific assurances that they will not be tortured. I remain concerned, however, that mere assurances from countries that are known to practice torture systematically are not sufficient. While you state that the United States would follow up on any credible information that such detainees have been mistreated, how would such information emerge if no outsiders have access to these detainees? Has the administration considered seeking assurances that an organization such as the International Committee for the Red Cross have access to detainees after they have been turned over? If not, I urge you to do so. Finally, has the administration followed up on specific allegations reported in the press that such detainees may have been tortured, including claims regarding a German citizen sent to Syria in 2001, and statements by former CIA official Vincent Cannistrano concerning an al Qaeda detainee sent from Guantanamo to Egypt (see enclosed articles)? Thank you again for your response to my last letter. With best regards, PATRICK LEAHY handwritten note: I appreciate your concern. GENERAL COUNSEL OF THE DEPARTMENT OF
DEFENSE April 2, 2003 Mr. Kenneth Roth Dear Mr. Roth: This is in response to your December 26, 2002, letter to the President and other letters to senior administration officials regarding detention and questioning of enemy combatants captured in the war against terrorists of global reach after the terrorist attacks on the United States on September 11, 2001. The United States questions enemy combatants to elicit information they may possess that could help the coalition win the war and forestall further terrorist attacks upon the citizens of the United States and other countries. As the President reaffirmed recently to the United Nations High Commissioner for Human Rights, United States policy condemns and prohibits torture. When questioning enemy combatants, U.S. personnel are required to follow this policy and applicable laws prohibiting torture. If the war on terrorists of global reach requires transfer of detained enemy combatants to other countries for continued detention on our behalf, U.S. Government instructions are to seek and obtain appropriate assurances that such enemy combatants are not tortured. U.S. Government personnel are instructed to report allegations of mistreatment of or injuries to detained enemy combatants, and to investigate any such reports. Consistent with these instructions, U.S. Government officials investigate any known reports of mistreatment or injuries to detainees. The United States does not condone torture. We are committed to protecting human rights as well as protecting the people of the United States and other countries against terrorists of global reach. Sincerely, William J. Haynes II CENTRAL INTELLIGENCE AGENCY 23 June 2003 General Counsel Miles P. Fischer, Esquire Dear Messrs, Fischer and Horton: Thank you for your letter of 4 June regarding the treatment of enemy combatants detained in the wake of the terrorist attacks on the United States of 11 September 2001. As you know, the Director of Central Intelligence is required by law to protect intelligence sources and methods, 50 U.S.S. 5403-3 (c) (6), and the Central Intelligence Agency (CIA) does not comment on operational activities or practices. I can assure you, however, that in its various activities around the world the CIA remains subject to the requirements of US law. Pursuant to Executive Order 12333, any allegations of unlawful behavior are reported by the CIA to the Department of Justice, and may be investigated both by that Department and by the Agency's own Presidentially appointed, Senate confirmed Inspector General. The Agency also provides the Congressional intelligence oversight committees with briefings and materials about its various activities, as provided by 50 U.S.C. §§413a, 413b(b). I appreciate the concerns raised in your letter as well as the thoughtfulness of your questions. While I acknowledge that this response does not provide you with all the information you have requested, I want you to know that I share your committees' interest in ensuring that US personnel understand their obligations under US law and comply with them. Sincerely, GENERAL COUNSEL OF THE DEPARTMENT OF
DEFENSE June 25, 2003 The Honorable Patrick J. Leahy Dear Senator Leahy: I am writing in response to your June 2, 2003, letter to Dr. Rice raising a number of legal questions regarding the treatment of detainees held by the United States in the wake of the September 11, 2001, attacks on the United States and in this Nation's war on terrorists of global reach. We appreciate and fully share your concern for ensuring that in the conduct of this war against a ruthless and unprincipled foe, the United States does not compromise its commitment to human rights in accordance with the law. In response to your specific inquiries, we can assure you that it is the policy of the United States to comply with all of its legal obligations in its treatment of detainees, and in particular with legal obligations prohibiting torture. Its obligations include conducting interrogations in a manner that is consistent with the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT") as ratified by the United States in 1994. And it includes compliance with the Federal anti-torture statute, 18 U.S.C. §§ 2340-2340A, which Congress enacted to fulfill U.S. obligations under the CAT. The United States does not permit, tolerate or condone any such torture by its employees under any circumstances. Under Article 16 of the CAT, the United States also has an obligation to "undertake ... to prevent other acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture." As you noted, because the terms in Article 16 are not defined, the United States ratified the CAT with a reservation to this provision. This reservation supplies an important definition for the term "cruel, inhuman, or degrading treatment or punishment." Specifically, this reservation provides that "the United States considers itself bound by the obligation under Article 16 to prevent 'cruel, inhuman or degrading treatment or punishment', only in so far as the term 'cruel inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States." United States policy is to treat all detainees and conduct all interrogations, wherever they may occur, in a manner consistent with this commitment. As your letter stated, it would not be appropriate to catalogue the interrogation techniques used by U.S. personnel in fighting international terrorism, and thus we cannot comment on specific cases or practices. We can assure you, however, that credible allegations of illegal conduct by U.S. personnel will he investigated and, as appropriate, reported to proper authorities. In this connection, the Department of Defense investigation into the deaths at Bagram, Afghanistan, is still in progress. Should any investigation indicate that illegal conduct has occurred, the appropriate authorities would have a duty to take action to ensure that any individuals responsible are held accountable in accordance with the law. With respect to Article 3 of the CAT, the United States does not "expel, return ('refouler') or extradite" individuals to other countries where the U.S. believes it is "more likely than not" that they will be tortured, Should an individual be transferred to another country to be held on behalf of the United States, or should we otherwise deem it appropriate, United States policy is to obtain specific assurances from the receiving country that it will not torture the individual being transferred to that country. We can assure you that the United States would take steps to investigate credible allegations of torture and take appropriate action if there were reason to believe that those assurances were not being honored. In closing, I want to express my appreciation for your thoughtful questions. We are committed to protecting the people of this Nation as well as to upholding its fundamental values under the law. Sincerely, William J. Haynes II
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