Discusses incidents of abuse of detainees by Army personnel that have been substantiated. Legal discussion point out that Article 93 does not specifically prohibit these acts, but does prohibit cruel, inhumane or degrading treatment and intent must be determined. In order to find a violation of Article 93, it requires a probable cause determination that the accused was cruel toward, oppressed, or maltreated a person subject to the accused's orders.
DRAFT • 16 July 2004
INFORMATIONPAPER
CISA-ZE
SLIBIgCT: Potential Ctiities Against Detainees
I. Purpose. To provide information on potential crimes committed against detainees by Army personnel using methods such as nudity and military working dogs in their interaction with detainees.
2, Background.
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a. The on-going CU) Abu Ghraib and other investigations have substantiated abuse of detainees by some Army personnel. Some acts are clearly criminal in nature and subject to traditional criminal law analysis. These include, but are not limited to, assaults and
-.4-, • requiring detainees to simulate sexual acts. These cases represent fairly simple factual
'patterns and subject the perpetrator to criminal liability and subject those in the supervisory chain of command who knew of the misconduct and approved or condoned it to criminal liability also.
b.
The more complex cases fall into two categories: What constitutes maltreatment under Article 93 in regards to detainees and what is the culpability of anyone approving, reviewing, or implementing an interrogation technique designed to comply with the law of war and Geneva Conventions and with the purpose of obtaining useful intelligence.
b.
Investigation has shown that Army personnel used military working dogs, nudity, women's underwear, and stress positions in their interactions with detainees. Some examples of such use are
(1)Army personnel required detainees to remove, all clothing and then deprived them of clothing for extended periods of time;
(2)Army personnel placed women's underwear on the heads and faces of
detainees while detainees were cuffed or otherwise unable to remove the panties;
(3)Army personnel had military working dogs present while interrogating
detainees and, on at least one occasion, assertively used the dog to evoke fear in the
detainee;
(4)Army personnel required detainees to remain in uncomfortable stress positions for extended periods of time. n2 fl 9
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All information related to this matter is law enforcement sensitive and should be restricted—Any premature release of case-sensitive information could jeopardize the investigation and affect successful prosecution. This inforrnatien is protected by the Privacy ACT: By law regulation, it may not be disclosed to any person or organization outside the
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Department of Defense without the individuals authorization and prior approval of the I.J.S. Army Criminal investigation Command.
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3, Discussion
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a. For the reasons cussed below, (bA)
The determination of
whether a crime was committed Will haVe- tO he made on a case-by-case basis; however
Cf,SA-ZF DRAFT
SUBJECT: Potential Crimes Against Detainees
b. The Applicable Rules.
(1)The possible UCMJ violations include violation of a lawful order under article 92, maltreatment under article 93, and I or assault under article 128. Citing a soldier or commander for a violation of Article 93 requires a probable cause determination that the accused was cruel toward, oppressed, or-maltreated a person subject to the accused's orders.
(2)The relevant Army regulations provide general guidance in this area and do not specifically prohibit any of the acts described in paragraph 2a above. AR 190 8,
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Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees,
prohibits inhumane, and, and degrading treatment. Detainees are to be treated with respect for their person, honor, manners and customs and protected against all acts of threats, and insults. AR 190 12, Military Working Dogs, authorizes the use of
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military working dogs to increase MP combat potential. Enemy prisoner of war control and point security are listed as examples of ways to use dogs to increase combat potential. It is left to commanders of units with Military working dogs to establish Policies and procedures governing release of dogs consistent with the regulation.
c. Evidence Needed to Support a Charge. Given that neither the UCNIJ nor Army regulations specifically prohibit the activity in question, one must determine whether the above described acts (1) constituted inhumane, cruel, or degrading treatment, and (2) the actor's intent.
FOR OFFICIAL USE ONLY - LAW ENFORCEMENT SENSITIVE/ ATTORNEY WORK PRODUCT AliaOftttatiOti feWeecliO this mailer is law enforcement sensitive agct$Itould he restricted. Any oonann#e. release of ,
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case-sensitive inform c0.04:106patdi*(4 investigation and affect successful prosecution. This information is pfiz4r,4te4bY the Privac y Adt, By law regulation, it may not he disclosed to any person or organization outside the 6-5027 -7 0404000 of DeoiS.0 without the indi vidual's afiitiOiliatiOn and prior approval of the U.S. Army Criminal Investigation Cdthioaitd.
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'(1) TO 8,uppon a ohogo. woo artick 924 UCM•, evidence would have to show
that a soldier violated a general regulation or lawful, order in hislher treatment of the
detainees or that the soldier was derelict in his/her duties . Dereliction of duties
legitimate chare, when the person W1116111. - or negligently fails to perform that duty of
care
Admittedly, tiot all the provisions of AR 1 90-8 Can be enforced tinder UCMJ Article 92; however, C/SA-ZF DRAFT SIMIECT; Potential Critne Against Detainees
paragraph 1-5 is punitive because it clearly states, "Inhumane treatment is a serious and
punishable offense under the UCIA.1 (AR 190-8, para. 1.-54(4))- Paragraphs 1-51) through
1-5d go on to make specific actions m respect to detainees or their. treatment prohibited
by milit service Members,.
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(b) cs--)
1 A duty may be 440$6.4 by retwatioti (WINO Atb:cle9,ota )(a).)FOR OFFICIAL USE ()KY- LAW 000.1tetiaNt SENSITIVE . ATTORNEY WORK PRODUCT All infattiation related to this matter is law enforcement sen sitive and should be reStribta Any premature release of
case-enplayestnfozmp.non could jeop ardiz investigation and affect successful prosecution. This information is protected by the Privacy AO, By law tUttilatipia, it by4y not be disclosed to any pakatior organization otit:sicie the Department of Defense without th individualS authorization and prior approval of the US Army Cantinainvestigation c.600-fiara el oz-78
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PREPARED .)(: MAJ APPROVED BY LTC , -SJA CIDC
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FOR OFNCIAL USE ONLY — LAW ENFORCEMENT SENSITIVE / ATTORNEY WORK PRODUCT All information related to this matter is law enforcement sensitive and should be restricted. Any premature release of case-Sensitive information could jeopardize the investigation and affect successful prosecution. This information is protected by the Privacy Act. By law regulation, it may not be disclosed to any perstn or organization outside the Department of Defense without the individual's authorization and prior approval of the U.S. Army Criminal Investigation Command.
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