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MEMO 20
UNCLASSIFIED
SECRET/NOFORN
DEPARTMENT OF DEFENSE
JOINT TASK FORCE 170
GUANTANAMO BAY, CUBA
APO AE 09360
JTF 170-SJA
11 October 2002
MEMORANDUM FOR
Commander, Joint Task Force 170
SUBJECT: Legal Brief
on Proposed Counter-Resistance Strategies
1. (S/NF) ISSUE: To
ensure the security of the United States and its Allies, more aggressive
interrogation techniques than the ones presently used, such as the
methods proposed in the attached recommendation, may be required in
order to obtain information from detainees that are resisting
interrogation efforts and are suspected of having significant
information essential to national security. This legal brief references
the recommendations outlined in the JTF-170-J2 memorandum, dated 11
October 2002.
2. (S/NF) FACTS: The
detainees currently held at Guantanamo Bay, Cuba (GTMO), are not
protected by the Geneva Conventions (GC). Nonetheless, DoD interrogators
trained to apply the Geneva Conventions have been using commonly
approved methods of interrogation such as rapport building through the
direct approach, rewards, the multiple interrogator approach, and the
use of deception. However, because detainees have been able to
communicate among themselves and debrief each other about their
respective interrogations, their interrogation resistance strategies
have become more sophisticated. Compounding this problem is the fact that
there is no established clear policy for interrogation limits and
operations at GTMO, and many interrogators have felt in the past that
they could not do anything that could be considered "controversial." In
accordance with President Bush's 7 February 2002 directive, the
detainees are not Enemy Prisoners of War (EPW). They must be treated
humanely and, subject to military necessity, in accordance with the
principles of GC.
3. (S/NF)
DISCUSSION: The Office of the Secretary of Defense (OSD) has not adopted
specific guidelines regarding interrogation techniques for detainee
operations at GTMO. While the procedures outlined in Army FM 34-52
Intelligence Interrogation (28 September 1992) are utilized, they are
constrained by, and conform to the GC and applicable international law,
and therefore are not binding. Since the detainees are not EPWs, the
Geneva Conventions limitations that ordinarily would govern captured
enemy personnel interrogations are not binding on U.S. personnel
conducting detainee interrogations at GTMO. Consequently, in the absence
of specific binding guidance, and in accordance with the President's
directive to treat the detainees humanely, we must look to applicable
international and domestic law in order to determine the legality of the
more aggressive interrogation techniques recommended in the J2 proposal.
a. (U) International
Law: Although no international body of law directly applies, the more
notable international treaties and relevant law are listed below.
(1) (U) In November
of 1994, the United States ratified The Convention Against Torture and
Other Cruel, Inhumane or Degrading Treatment or Punishment. However, the
United State took a reservation to Article 16, which defined cruel,
inhumane and degrading treatment or punishment, by instead deferring to
the current standard articulated in the 8th Amendment to the United
States Constitution. Therefore, the United States is only prohibited
from committing these acts that would otherwise be prohibited under the
United States Constitutional Amendment against cruel and unusual
punishment. The United States ratified the treaty with the understanding
that the convention would not be self-executing, that is, that it would
not create a private cause of action in U.S. Courts. This convention is
the principal U.N. treaty regarding torture and other cruel, inhumane,
or degrading treatment.
(2) (U) The
International Covenant on Civil and Political Rights (ICCPR), ratified
by the United States in 1992, prohibits inhumane treatment in Article 7,
and arbitrary arrest and detention in Article 9. The United States
ratified it on the condition that it would not be self-executing, and it
took a reservation to Article 7 that we would only be bound to the extent
that the United States Constitution prohibits cruel and unusual
punishment.
(3) (U) The American
Convention on Human Rights forbids inhumane treatment, arbitrary
imprisonment, and requires the state to promptly inform detainees of the
charges against them, to review their pretrial confinement, and to
conduct a trial within a reasonable time. The United States signed the
convention on 1 June 1977, but never ratified it.
(4) (U) The Rome
Statute established the International Criminal Court and criminalized
inhumane treatment, unlawful deportation, and imprisonment. The United
States not only failed to ratify the Rome Statute, but also later
withdrew from it.
(5) (U) The United
Nations Universal Declaration of Human Rights, prohibits inhumane or
degrading punishment, arbitrary arrest, detention, or exile. Although
international declarations may provide evidence of customary
international law (which is considered binding on all nations even
without a treat), they are not enforceable by themselves.
(6) (U) There is
some European case law stemming from the European Court of Human Rights
on the issue of torture. The Court ruled on allegations of torture and
other forms of inhumane treatment by the British in the Northern
Ireland conflict. The British authorities developed practices of
interrogation such as forcing detainees to stand for long hours, placing
black hoods over their heads, holding the detainees prior to
interrogation in a room with continuing loud noise, and depriving them
of sleep, food, and water. The European Court concluded that these acts
did not rise to the level of torture as defined in the Convention
Against Torture, because torture was defined as an aggravated form of
cruel, inhuman, or degrading treatment or punishment. However, the Court
did find that these techniques constituted cruel, inhumane, and
degrading treatment. Nonetheless, and as previously mentioned, not only
is the United States not a part of the European Human Rights Court, but
as previously stated, it only ratified the definition of cruel, inhuman,
and degrading treatment consistent with the U.S. Constitution. See also
Mehjnovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Geor. 2002); Committee
Against Torture v. Israel, Supreme Court of Israel, 6 Sep 99, 7 BHRC 31;
Ireland v UK (1978), 2 EHRR 25.
b. (U) Domestic Law;
Although the detainee interrogations are not occurring in the continental
United States, U.S. personnel conductin said interrogations are still
bound by applicable Federal Law, specifically, the Eighth Amendment of
the United States Constitution, 18 U.S.C. 2340, and for military
interrogators, the Uniform Code of Military Justice (UCMJ).
(1) (U) The Eighth
Amendment of the United States Constitution provides that excessive bail
shall not be required, nor excessive fines imposed, nor cruel and
unusual punishment inflicted. There is a lack of Eighth Amendment case
law relating in the context of interrogations, as most of the Eighth
Amendment litigation in federal court involves either the death penalty,
or 42 U.S.C. 1983 actions from inmates based on prison conditions. The
Eighth Amendment applies as to whether or not torture or inhumane
treatment has occurred under the federal torture statute. (footnote
marker) [1]
(a) (U) A principal
case in the confinement context that is instructive regarding Eighth
Amendment analysis (which is relevant because the United States adopted
the Convention Against Torture, Cruel, Inhumane and Degrading Treatment,
it do so deferring to the Eighth Amendment of the United States
Constitution) and conditions of confinement if a U.S. court were to
examine the issue is Hudson v McMillian, 503 U.S. 1 (1992). The issue in
Hudson stemmed from a 42 U.S.C. 1983 action alleging that a prison
inmate suffered minor bruises, facial swelling, loosened teeth, and a
cracked dental plate resulting from a beating by prison guards while he
was cuffed and shackled. In this case the Court held that there was no
governmental interest in beating an inmate in such a manner. The Court
further ruled that the use of excessive physical force against a
prisoner might constitute cruel and unusual punishment, even though the
inmate does not suffer serious injury.
(b) (U) In Hudson,
the Court relied on Whitley v. Alberts, 475 U.S. 312 (1986), as the
seminal case that establishes whether a constitutional violation has
occurred. The Court stated that the extent of the injury sufered by an
inmate is only one of the factors to be considered, but that there is no
significant injury requirement in order to establish an Eighth Amendment
violation, and that the absence of serious injury is relevant to, but
does not end, the Eighth Amendment inquiry. The Court based its decision
on the "...settled rule that the unnecessary and wanton infliction of
pain ... constitutes cruel and unusual punishment forbidden by the Eight
Amendment. " Whitley at 319, quoting Ingraham v Wright, 430 U.S. 651,
670 (1977). The Hudson Court then held that in the excessive force or
conditions of confinement context, the Right Amendment violation test
delineated by the Supreme Court in Hudson is that when prison officials
maliciously and sadistically use force to cause harm, contemporary
standards of decency are always violated, whether or not significant
injury is evident. The extent of injury suffered by an inmate is one
factor that may suggest whether the use of force could plausibly have
been thought necessary in a particular situation, but the question of
whether the measure taken inflicted unnecessary and wanton pain and
suffering, ultimately turns on whether force was applied in a good faith
effort to maintain or restore discipline, or maliciously and
sadistically for the very (emphasis added) purpose of causing harm If
so, the Eighth Amendment claim will prevail.
(c) (U) At the
District Court level, the typical conditions of confinement claims
involve a disturbance of the inmate's physical comfort, such as sleep
deprivation or loud noise. The Eighth Circuit ruled in Singh v Holcomb,
1992 U.S. App. LEXIS 24790, that an allegation by an inmate that he was
constantly deprived of sleep which resulted in emotional distress, loss
of memory, headaches, and poor concentration, did not show either the
extreme deprivation level, or the officials' culpable state of mind
required to fulfill the objective component of an Eighth Amendment
conditions-of-confinement claim.
(d) (U) In another
sleep deprivation case alleging an Eighth Amendment violation, the
Eighth Circuit established a totality of the circumstance test, and
stated that if a particular condition of detention is reasonable related
to a legitimate governmental objective, it does not, without more,
amount to punishment. In Ferguson v. Cape Girardeau County, 88 F. 3d 647
(8th Cir. 1996), the complainant was confined to a 5-1/2 by 5-1/2 foot
cell without a toilet or sink, and was forced to sleep on a mat on the
floor under bright lights that were on twenty-four hours a day. His
Eighth Amendment claim was not successful because he was able to sleep
at some point, and because he was kept under those conditions due to a
concern for his health, as well as the perceived danger that he
presented. This totality of the circumstances test has also been adopted
by the Ninth Circuit. In Green v CSO Strack, 1995 U.S. App. LEXIS 14451,
the Court held that threats of bodily injury are insufficient to state a
claim under the Eighth Amendment, and that sleep deprivation did not
rise to a constitutional violation where the prisoner failed to present
evidence that he either lost sleep or was otherwise harmed.
(e) (U) Ultimately,
an Eighth Amendment analysis is based primarily on whether the
government had a good faith legitimate governmental interest, and did
not act maliciously and sadistically for the very purpose of causing
harm.
(2) (U) The torture
statute (18 U.S.C. 2340) is the United States' codification of the
signed and ratified provisions of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, and pursuant
to subsection 2340B, does not create any substantive or procedural
rights enforceable by law by any party to any civil proceeding.
(a) (U) The statute
provides that "whoever outside the United States commits or attempts to
commit torture shall be fined under this title or imprisoned not more
than 20 years, or both, and if death results to any person from conduct
prohibited by this subsection, shall be punished by death or imprisoned
for any term of years or for life."
(b) (U) Torture is
defined as "an act committed by a person acting under color of law
specifically intended (emphasis added) to inflict severe physical or
mental pain or suffering (other than pain or suffering incident to
lawful sanctions) upon another person within his custody or physical
control." The statute defines "sever mental pain or suffering" as "the
prolonged mental harm caused by or resulting (emphasis added) from the
intentional infliction or threatened infliction of sever physical pain
or suffering; or the administration or application, or threatened
administration or application, of mind-altering substances or other
procedures calculated to disrupt profoundly the senses of the
personality; or the threat of imminent death; or the administration or
application of mind-altering substances or other procedures calculated
to disrupt profoundly the senses or personality."
(c) (U) Case law in
the context of the federal torture statute and interrogations is also
lacking, as the majority of the case law involving torture relates to
either the illegality of brutal tactics used by the police to obtain
confessions (in which the Court simply states that these confessions
will be deemed as involuntary for the purposes of admissibility and due
process, but does not actually address torture or the Eighth Amendment),
or the Alien Torts Claim Act, in which federal courts have defined that
certain uses of force (such as kidnapping, beating and raping of a nun
with the consent or acquiescence of a public official, See Ortiz v
Gramajo, 886 F. Supp 162 (D. Mass. 1995)) constituted torture. However,
no case law on point within the context of 18 USC 2340.
(3) (U) Finally,
U.S. military personnel are subject to the Uniform Code of Military
Justice. The punitive articles that could potentially be violated
depending on the circumstances and results of an interrogation are:
Article 93 (cruelty and maltreatment), Article 118 (murder), Article 119
(manslaughter), Article 124 (maiming), Article 128 (assault), Article
134 (communicating a threat, and negligent homicide), and the inchoate
offenses of attempt (Article 80), conspiracy (Article 81), accessory
after the fact (Article 78), and solicitation (Article 82). Article 128
is the article most likely to be violated because a simple assault can
be consummated by an unlawful demonstration of violence which creates in
the mind of another a reasonable apprehension of receiving immediate
bodily harm, and a specific intent to actually inflict bodily harm is
not required.
4. (S/NF) ANALYSIS:
The counter-resistance techniques proposed in the JTF-170-J2 memorandum
are lawful because they do not violate the Eighth Amendment to the
United States Constitution or the federal torture state as explained
below. An international law analysis is not required for the current
proposal because the Geneva Conventions do not apply to these detainees
since they are not EPWs.
(a) (S/NF) Based on
the Supreme Court framework utilized to assess whether a public official
has violated the Eighth Amendment, so long as the force used could
plausibly have been thought necessary in a particular situation to
achieve a legitimate governmental objective, and it was applied in a
good faith effort and not maliciously or sadistically for the very
purpose causing harm, the proposed techniques are likely to pass
constitutional muster. The federal torture statute will not be violated
so long as any of the proposed strategies are not specifically intended
to cause severe physical pain or suffering or prolonged mental harm.
Assuming that severe physical pain is not inflicted, absent any evidence
that any of these strategies will in fact cause prolonged and long
lasting mental harm, the proposed methods will not violate the statute.
(b) (S/NF) Regarding
the Uniform Code of Military Justice; the proposal to grab, poke in the
chest, push lightly, and place a wet towel or hood over the detainee's
head would constitute a per se violation of Article 128 (Assault).
Threatening a detainee with death may also constitute a violation of
Article 128, or also Article 134 (communicating a threat). It would be
advisable to have permission or immunity in advance from the convening
authority, for military members utilizing these methods.
(c) (S/NF)
Specifically, with regard to Category I techniques, the use of mild and
fear related approaches such as yelling at the detainee is not illegal
because in order to communicate a threat, there must also exist an
intent to injure. Yelling at the detainee is legal so long as the
yelling is not done with the intent to cause severe physical damage or
prolonged mental harm. Techniques of deception such as multiple
interrogator techniques, and deception regarding interrogator identity
are all permissible methods of interrogation, since there is no legal
requirement to be truthful while conducting an interrogation.
(d) (S/NF) With
regard to Category II methods, the use of stress positions such as the
proposed standing for four hours, the use of isolation for up to thirty
days, and interrogating the detainees in an environment other than the
standard interrogation booth are all legally permissible so long as no
severe physical pain is inflicted and prolonged mental harm intended,
and because there is a legitimate governmental objective in obtaining
the information necessary that the high value detainees on which these
methods would be utilized poseess, for the protection of the national
security of the United States, its citizens, and allies. Furthermore,
these methods would not be utilized for the "very malicious and sadistic
purpose of causing harm." and absent medical evidence to the contrary,
there is no evidence that prolonged mental harm would result from the
use of these strategies. The use of falsified documents is legally
permissible because interrogators may use deception to achieve their
purpose.
(e) (S/NF) The
deprivation of light and auditory stimuli, the placement of a hood over
the detainee's head during transportation and questioning, and the use of
20 hour interrogations are all legally permissible so long as there is
an important governmental objective, and it is not done for the purpose
of causing harm or with the intent to cause prolonged mental suffering.
There is no legal requirement that detainees must receive four hours of
sleep per night, but if a U.S. Court ever had to rule on this procedure,
in order to pass Eighth Amendment scrutiny, and as a cautionary measure,
they should receive some amount of sleep so that no sever physical or
mental harm will result. Removal of comfort items is permissible because
there is no legal requirement to provide comfort items. The requirement
is to provide adequate food, water, shelter, and medical care. The issue
of removing published religious items or materials would be relevant if
these were United States citizens with a First Amendment right. Such is
not the case with the detainees. Forced grooming and removal of clothing
are not illegal, so long as it is not done to punish or cause harm, as
there is a legitimate governmental objective to obtain information,
maintain health standards in the camp and protect both the detainees and
the guards. There is no illegality in removing hot meals because there
is no specific requirement to provide hot meals, only adequate food. The
use of the detainee's phobias is equally permissible.
(f) (S/NF) With
respect to the Category III advanced counter-resistance strategies, the
use of scenarios designed to convince the detainee that death or severely
painful consequences are imminent is not illegal for the same
aforementioned reasons that there is a compelling governmental interest
and it is not done intentionally to cause prolonged harm. However,
caution should be utilized with this technique because the torture
statute specifically mentions making death threats as an example of
inflicting mental pain and suffering. Exposure to cold weather or water
is permissible with appropriate medical monitoring. The use of a wet
towel to induce the misperception of suffocation would also be
permissible if not done with the specific intent to cause prolonged
mental harm, and absent medical evidence that it would. Caution should
be exercised with this method, as foreign courts have already advised
about the potential mental harm that this method may cause. The use of
physical contact with the detainee, such as pushing and poking will
technically constitute an assault under Article 128, UCMJ.
5. (S/NF)
RECOMMENDATION: I recommend that the propose methods of interrogation be
approved, and that the interrogators be properly trained in the use of
the approved methods of interrogation. Since the law requires
examination of all facts under a totality of circumstances test, I
further recommend that all proposed interrogations involving category II
and III methods must undergo a legal, medical, behavioral science, and
intelligence review prior to their commencement.
6. (U) POC: Captain
Michael Bordera, x3536.
DIANE E BEAVER
LTC, USA
Staff Judge Advocate
Declassify Under the
Authority of Executive Order 12958
By Executive Secretary, Office of the Secretary of Defense
By William P. Marriott, CAPT, USN
June 21, 2004
UNCLASSIFIED
_______________
[1] Notwithstanding
the argument that U.S. personnel are bound by the Constitution, the
detainees confined at GTMO have no jurisdictional standing to bring
section 1983 action alleging an Eighth Amendment violation in U.S.
Federal Court
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