OLC Notes: Talking Points on Legal Restrictions on Interrogations Abroad

Considerably redacted talking points on the legal standards that apply to interrogations of detainees in Guantanamo Bay, Abu Gharib and Afghanistan. The notes specifically talk about Common Article 3 of the Geneva Conventions, Article 16 of the Convention Against Torture and federal torture statutes. File name: DOJOIG005719.

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Notes
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Sunday, August 23, 2009
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LEGAL RESTRICTIONS ON INTERROGATIONS ABROAD
Question: There have been press reports indicating that the Department of
Justice has taken the position that certain treaties and statutes may not apply
in Guantanamo or in other situations. How can that be?
Talking Points:
• I cannot comment on specific legal advice that has been given to, requested by, or
provided for Executive branch departments. Institutional interests in ensuring that the
Executive branch can receive confidential legal advice from the Department of Justice
requires that that advice not be publicly disclosed.
• The actual words ofstatutes and treaties control. We are all repulsed by the abuses of
Abu Ghraib, and our intuition recoils from treatment that is abusive or indecent. But
when it comes to applying the legal standards that govern interrogations, we must take
care to apply the laws that Congress has written according to the words that Congress has
enacted.
o Determining whether a particular statute or treaty applies to particular conduct is
often a matter of complex legal questions depending on specific language adopted
by Congress and "understandings" or "reservations" to treaties adopted by the
Senate.
• These questions include whether a particular statute applies in a certain
territory outside the United States and whether it applies to particular
categories ofpersons and specific kinds of activities.
o All of these limitations are especially important to bear in mind when it comes to
criminal statutes and criminal prosecutions, because criminal statutes are
generally construed strictly, in favor ofthe criminal defendant.
• The Uniform Code ofMilitary Justice governs everywhere. In addition, while a great of
discussion has been focused on international legal obligations, and in particular the
Geneva Conventions, it is important to remember that when it comes to the actions of
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u.s. military personnel, whether in Iraq during time of war or anywhere else in the world
at any time, the Uniform Code of Military Justice always applies, and it fully proscribes
any conduct toward prisoners of war or other detainees that could fairly be described as
torture, cruelty or maltreatment.
• Other criminal provisions. Beyond the UCMJ, there are still other federal criminal
provisions that potentially may apply to interrogations conducted abroad, depending upon
the circumstances, including who is conducting the interrogations and where the conduct
takes place.
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Question: What legal standards govern interrogations in Iraq?
Talking Points:
• The Uniform Code of Military Justice applies to members of the armed forces
everywhere, including in Iraq.
o The UCMJ prohibits assault (art. 128), cruelty and maltreatment (art. 93),
disobedience to orders and dereliction of duty (art. 92), maiming (art. 124),
involuntary manslaughter (art. 119), and murder (art. 118).
• The Military Extraterritorial Jurisdiction Act, or "MEJA," applies in certain
circumstances to others who are working with the military. See CRM Talkers.
o Under MEJA, those accompanying United States Armed Forces, former members
of the military no longer subject to the UCMJ, and members ofthe military who
act with others may be prosecuted for certain acts committed "outside the United
States" that would be a felony if committed within the "special maritime and
territorial jurisdiction ofthe United States." (18 U.S.c. § 3261(a».
o Such crimes could include assault (18 U.S.c. § 113), maiming (id. § 114), murder
(id. § 1111), and manslaughter (id. § 1112).
o MEJA applies only "outside the United States," as defined by Congress in the
general criminal provisions of the U.S. Code. For these purposes, however,
Congress has defined the "United States" to include the "special maritime and
territorial jurisdiction of the United States," which may include certain military
bases or other areas in Iraq, at least with respect to certain conduct. Accordingly,
MEJA's application in Iraq will depend on the nature ofparticular areas and the
conduct at issue.
• The Geneva Conventions apply in Iraq.
o As a general rule, captured members of the Iraqi armed forces are entitled to the
protections ofthe Third Geneva Convention covering Prisoners of War.
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• The Third Geneva Convention protects prisoners of wars against "grave
breaches," which include "wilful killing," "torture or inhuman treatment,"
or "wilfully causing great suffering or serious injury to body or health."
• Furthermore, under article l7 of the Third Geneva Convention, "[n]o
physical or mental torture, nor any other form of coercion, may be inflicted
on prisoners ofwar to secure from them information of any kind whatever.
Prisoners of war who refuse to answer may not be threatened, insulted, or
exposed to unpleasant or disadvantageous treatment of any kind."
o The United States is an "occupying power" in Iraq, and the Fourth Geneva
Convention covering Civilians thus also applies.
• .The Fourth Geneva Convention protects Iraqis against essentially the same
"grave breaches" proscribed by the Third Convention.
• The Fourth Geneva Convention further protects Iraqis against "outrages
upon personal dignity" and "humiliating and degrading treatment."
• The Geneva Conventions can be enforced through the federal War Crimes Act.
o The War Crimes Act imposes criminal liability on any U.S. citizen or any member
ofthe U.S. armed forces who commits a "grave breach" ofthe Geneva
Conventions. (18 U.S.C. § 2441)
o "Grave breaches" under the relevant treaties include "wilful killing," "torture or
inhuman treatment," and "wilfully causing great suffering or serious injury to
body or health."
o Congress deliberately crafted the War Crimes Act to fulfill our treaty obligations
and thus limited it to situations where the treaties apply, and then only to grave
breaches of the Conventions.
• In addition, the federal torture statute makes it a crime for any person "outside the
United States [to] commit or attempt[] to commit torture." (18 U.S.c. § 2340A).
o Torture is defined as "an act committed by a person acting under the color of law
specifically intended to inflict severe physical or mental pain or suffering (other
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than pain or suffering incidental to lawful sanctions) upon another person within
his custody or physical control.' ld. § 2340(1).
o Congress placed limiting definitions on the terms of the statute. It defined "severe
mental pain and suffering" as "the prolonged mental harm caused or resulting
from" specified acts, including the "intentional infliction or threatened infliction
of severe physical pain or suffering" and the threat of imminent death, and the
actual or threatened administration of mind-altering substances. ld. § 2340(2).
o The torture statute would generally apply to acts of torture committed in Iraq. In
particular cases, however, there may be difficult legal questions about the scope of
its application.
• While Congress made the torture statute apply "outside the United States,"
it also included a special definition of the "United States" that includes the
"special maritime and territorial jurisdiction of the United States," which,
in turn, may include certain military bases and other areas overseas, at
least for certain kinds of conduct. (18 U.S.C. § 7(3) & 7(9))
• Because ofthe way Congress drafted the torture statute, therefore, its
application to certain areas in Iraq, particularly U.S. military bases, and to
particular conduct in those areas may vary depending on the circumstances
at issue.
• The international Convention Against Tortnre is also relevant.
o When the United States ratified the Convention Against Torture, the President and
the Senate defined United States obligations through an "understanding"
according to which "torture" under the treaty is interpreted to have essentially the
same meaning as in the federal torture statute.
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Question: What legal standards govern interrogations in Guantanamo and
Afghanistan?
Talking Points:
• Quite apart from treaty obligations, the President early on announced the policy that
detainees at Guantanamo will be treated "humanely and, to the extent appropriate and
consistent with military necessity, in a manner consistent with the principles of the Third
Geneva Convention of 1949," and that "[t]he detainees will not be subjected to physical
or mental abuse or cruel treatment." White House Fact Sheet (Feb. 7, 2002).
• The Uniform Code of Military Justice ("UCMJ") applies to members of the armed
forces everywhere, including in Gnantanamo and Afghanistan.
o The UCMJ prohibits assault (art. 128), cruelty and maltreatment (art. 93),
disobedience to orders and dereliction of duty (art. 92), maiming (art. 124),
involuntary manslaughter (art. 119), and murder (art. 118).
• The Military Extraterritorial Jurisdiction Act, or "MEJA," applies in certain
circumstances to others who are working with the military in Afghanistan. See
CRM Talkers.
o Under MEJA, those accompanying United States Armed Forces, former members
ofthe military no longer subject to the UCMJ, and members ofthe military who
act with others may be prosecuted for certain acts that would be a felony if
committed within the "special maritime and territorial jurisdiction of the United
States." (18 U.S.C. § 3261(a».
o . Such crimes could include assault (18 U.S.C. § 113), maiming (id. § 114), murder
(id. § 1111), and manslaughter (id. § 1112).
o MEJA applies only "outside the United States," as defined by Congress in the
general criminal provisions of the U.S. Code. The "United States" is defined in
those statutes to include the "special maritime and territorial jurisdiction ofthe
United States," and it is likely that a court would hold that such areas may include
Guantanamo and certain areas in Afghanistan, at least with respect to certain
conduct. Accordingly, MEJA may not apply in Guantanamo and its application in
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Afghanistan will depend on the nature of particular areas and the specific conduct
at issue.
• As a matter of law (distinct from the policy announced by the President), the
protections of the Geneva Conventions do not apply to al Qaeda and the Taliban.
o The Geneva Conventions do not protect members of al Qaeda because al Qaeda
"is not a state party to [the treaties]; it is a foreign terrorist group." White House
Fact Sheet (Feb. 7, 2002).
o Although Afghanistan is a party to the Geneva Conventions, the Taliban detainees
are not entitled to the protections of the Third Geneva Convention covering
Prisoners ofWar because they do not satisfy the four conditions for status as
POWs under the treaty.


Those conditions are: to be commanded by a person responsible for his
subordinates, to have distinctive and recognizable identifying insignia, to
carry arms openly, and to act in accordance with the laws of war. Because
the Taliban failed to meet each of these standards, except the open
carrying of arms, Taliban detainees, whether held in Afghanistan or at
Guantanamo, do not qualify for POW status under the Third Geneva
Convention.
The only court to address the issue has upheld the President's
determination that members of the Taliban militia fail to qualify for POW
status under the Third Geneva Convention. See United States v. Lindh,
212 F. Supp. 2d 541,556-558 (ED. Va. 2002).
o The Fourth Geneva Convention covering Civilians also covers "cases of partial or
total occupation of the territory of a High Contracting Party," as informed by the
Hague Regulations. The United States is not an "occupying power" in
Afghanistan within the meaning of the Hague Regulations, because Afghanistan
has not been "actually placed under the authority of the hostile army." (Hague
Regulations, art. 42(1))
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• The interrogation of al Qaeda and TaJiban detainees could not violate the federal
War Crimes Act, because in relevant part the Act criminaJizes only "gl'ave
breaches" of the Geneva Conventions, and there can be no breaches of these treaties
where they do not apply.
• The federal torture statute makes it a crime for any person "outside the United
States [to] commit or attempt[] to commit torture." (18 U.S.c. § 2340A).
o Torture is defined as "an act committed by a person acting under the color oflaw
specifically intended to inflict severe physical or mental pain or suffering (other
than pain or suffering incidental to lawful sanctions) upon another person within
his custody or physical control." Id. § 2340(1).
o Congress placed limiting definitions on the terms of the statute. It defined "severe
mental pain and suffering" as "the prolonged mental harm caused or resulting
from" specified acts, including the "intentional infliction or threatened infliction
of severe physical pain or suffering" and the threat of imminent death, and the
actual or threatened administration of mind-altering substances. Id. § 2340(2).
o The torture statute would generally apply to acts of torture committed in
Afghanistan. In particular cases, however, there may be difficult legal questions
about the scope of its application.
• While Congress made the torture statute apply "outside the United States,"
it also included a special definition of the "United States" that includes the
"special maritime and territorial jurisdiction of the United States," which,
in turn, may include certain military bases and other areas overseas, at
least for certain kinds of conduct. (18 U.S.C. § 7(3) & 7(9»
• Because of the way Congress drafted the torture statute, therefore, its
application to certain areas in Afghanistan, particularly U.S. military
bases, and to particular conduct in those areas may vary depending on the
circumstances at issue.
• In addition, it is likely that a court would hold that the torture statute does
not apply in Guantanamo, because the Guantanamo base may be
considered within the "special maritime and territorial jurisdiction of the
United States."
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• The international Convention Against Tortnre is also relevant.
o When the United States ratified the Convention Against Torture, the President and
the Senate defined United States obligations through an "understanding"
according to which "torture" under the treaty is interpreted to have essentially the
same meaning as in the federal torture statute.
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Question: Does the U.S. Constitution restrain interrogation overseas?
Talking Points:
• The two provisions of the Constitution that are potentially applicable, the Fifth and
Eighth Amendments, likely do not apply abroad and, in any event, may not provide
clear substantive constraints on interrogations that occur overseas.
• The Fifth Amendment does not apply to actions taken against aliens abroad.
o The Supreme Court has held that the Fifth Amendment does not apply to actions
taken against aliens abroad. Johnson v. Eisentrager, 339 U.S. 763, 784 (1950);
see United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (describing
Eisentrager as having "rejected the claim that aliens are entitled to Fifth
Amendment rights outside the sovereign territory of the United States").
• Accordingly, Fifth Amendment protections do not apply to alien detainees
in Iraq or Afghanistan.
• Furthermore, the United States has argued in the Guantanamo cases
currently pending before the Supreme Court that Guantanamo is not part
of the "sovereign territory" of the U.S.; thus, the Fifth Amendment would
not apply to alien detainees at Guantanamo, as well.
• In any event, even if the Fifth Amendment were to apply, the Due Process Clause of
the Fifth Amendment proscribes only conduct that "shocks the conscience."
o The substantive limits ofthe Due Process Clause have been held to protect against
"only the most egregious official conduct" that "shocks the conscience," which
likely would include only "conduct intended to injure in some way unjustifiable
by any goverrunent interest," based on "an understanding of traditional executive
behavior, of contemporary practice, and of the standards ofblame generally
applied to them." County ofSacramento v. Lewis, 523 U.S. 833, 846-47 & n.8,
849 (1998).
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• The protections of the Eighth Amendment, like those of the Fifth Amendment, likely
would be held not to apply to aliens detained abroad.
• In any event, even if it were applicable overseas, the Eighth Amendment only
forbids cruel and unusual punishment that is imposed after an adjudication of guilt,
and thus likely would not restrain the conduct of interrogations occurring prior to
such an adjudication.
o The Eighth Amendment, which forbids cruel and unusual punishment, applies
only after a formal adjudication of guilt. See City ofRevere v. Massachusetts
Gen. Hosp., 463 U.S. 239,244 (1983) ("Because there had been no formal
adjudication of guilt against Kivlin at the time he required medical care, the
Eighth Amendment has no application.").
o Accordingly, the Eighth Amendment would not apply to the interrogation of
detainees prior to any adjudication of guilt.
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Question: Does the International Covenant on Civil and Political Rights
("ICCPR") restrain interrogation overseas?
Talking Points:
• The ICCPR does not apply to conduct outside the United States.
o Under the plain terms ofthe ICCPR, each contracting party undertakes to ensure
the rights enumerated in the treaty "to all individuals within its territory and
subject to its jurisdiction." Art. 2(1) (emphases added).
o This is the position the United States has taken in the Guantanamo cases, and it is
also the consistent position of the State Department.
• The ICCPR is a human rights treaty and does not apply in wartime or to the
conduct of war.
o The laws of armed conflict constitute a separate body of international and
domestic law that the ICCPR was not intended to supplant.
o This conclusion is based on application of the principle that specific provisions
trump general provisions.
o This position has also been taken in the Guantanamo cases and approved by the
State Department.
• Article 7 of the ICCPR declares that "[n]o one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment."
o With respect to "cruel, inhuman or degrading treatment or punishment," the
United States took a reservation, limiting the phrase to conduct that would violate
the U.S. Constitution.
o The explanation of the Covenant sent to the Senate also said that "we interpret our
obligations under [the provision on torture] consistently with those we have
undertaken in [the Convention Against Torture)."
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Question: What about Common Article 3 of the Geneva Conventions - does
it apply?
Talking Points:
• Common article 3 of the Geneva Conventions proscribes cruel, humiliating and degrading
treatment of persons who are not actively engaged in hostilities, but by its terms it applies
only "[i]n the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties."
o The conflicts in Iraq and Afghanistan are of an international character and thus
common article 3 does not apply.
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Question: What about Article 16 of the Convention Against Torture - does it
apply?
Talking Points:
• Article 16 of the Convention Against Torture proscribes "cruel, inhuman or degrading
treatment or punislunent which do not amount to torture." Under a "reservation" to the
treaty, the United States defines this phrase to refer to "the cruel, unusual and inhumane
treatment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments" to the U.S.
Constitution.
• As a textual matter, Article 16 might not apply in times of war or times of extreme
threat to national security.
o The Convention clearly states that "[n]o exceptional circumstances whatsoever,
whether a state of war or a threat of war, internal political instability or any other
public emergency, may be invoked as a justification of torture," as proscribed in
Article 1 ofthe Convention. (Art. 2) No similar declaration applies to Article 16.
o Under ordinary rules of construction, the absence of a parallel declaration
excluding "exceptional circumstances" for Article 16 suggests that "a state ofwar
or a threat of war, internal political instability or ... other public emergency"
might justify conduct that would otherwise be prohibited by Article 16.
• By virtue of the U.S. reservation interpreting Article 16 to incorporate the substantive
protections of the Fifth and Eighth Amendments of the U.S. Constitution, Article 16
might not apply extraterritorially, since the Fifth Amendment has been held not to apply
to aliens abroad and the Eighth Amendment is also probably so limited in application.
• Finally, it is important to point out that unlike the Article 1 prohibition against torture,
which Congress has enforced through the federal torture statute, Congress has not chosen
to enact any criminal statute to enforce Article 16.
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Question: When and how does the federal torture statute apply to
interrogations conducted overseas?
Talking Points:
• The federal torture statute makes it a crime for any person "outside the United
States [to] commit or attempt[] to commit torture." (18 U.S.c. § 2340A).
• Congress placed limits on the definition of "torture" in the federal torture statute.
o Torture is defined as "an act committed by a person acting under the color oflaw
specifically intended to inflict severe physical or mental pain or suffering (other
than pain or suffering incidental to lawful sanctions) upon another person within
his custody or physical control." Id. § 2340(1),
o Congress defined "severe mental pain and suffering" as "the prolonged mental
harm caused or resulting from" specified acts, including the "intentional infliction
or threatened infliction of severe physical pain or suffering" and the threat of
imminent death, and the actual or threatened administration of mind-altering
substances, Id. § 2340(2),
• Congress also placed limits on the territorial scope of the torture statute by
including a special definition of what constitutes "outside the United States," and
these limits on the scope of the statute give rise to difficult legal questions about its
application to interrogations in Iraq, Afghanistan and Guantanamo.
o While Congress made the torture statute apply "outside the United States," it also
included a special definition of the "United States" that includes the "special
maritime and territorial jurisdiction of the United States," which, in tum, may
include certain military bases and other areas overseas, at least for certain kinds of
conduct. (18 U,S.c. § 7(3) & 7(9))
o Because of the way Congress drafted the torture statute, therefore, its application
to certain areas in Iraq and Afghanistan, particularly U.S. military bases, and to
particular conduct in those areas may vary depending on the circumstances at
Issue.
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o In addition, it is likely that a court would hold that the torture statute does not
apply in Guantanamo, because the Guantanamo base may be considered within
the "special maritime and territorial jurisdiction ofthe United States."
Author {OLe}: Jack Goldsmith
Phone: 514-2051
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