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Editor's note: Capitol Hill is abuzz now that the following memo, by lawyers working for a task force on Iraq policies, has been leaked to the public and the press.

The world has been shocked and appalled by photos of abuse at the Abu Ghraib Prison, and top Bush administration officials have responded by disavowing any knowledge, charging seven enlisted men and women with various offenses --- despite strong evidence that prisoners were tortured to death, nothing nearly so serious as murder or manslaughter --- relieving the prison's commandant of her command and attacking the patriotism of the administration's critics.

The accused have offered as their defense that they were only following orders. The former prison commandant, Brigadier General Janice Karpinski, adds that she was told by superiors that Military Intelligence was coming to Abu Ghraib to "Gitmoize" it and that she had nothing to do with the brutal interrogation techniques that were employed.

General Karpinski and her subordinates offer a legally and morally defective defense. But as the following memo would suggest, the general and the man and women under her command are probably telling the truth about orders from above. It's a "smoking gun" not because we find in this memo any direct order to use torture, but because even in this edited leaked version it indicates that far from being unaware of abuses, top Bush administration officials were specifically contemplating pseudo-legal exceptions to clear laws against torture, to the point that they made the radical claim in the face of numerous US court decisions to the contrary that cusomary international law is not incorporated into US domestic law, and arrived at the equally unorthodox conclusion that the soldiers of the former government of Afghanistan are not protected by the Geneva Conventions. The Military Police unit that ran Abu Ghraib was transferred there from Afghanistan, and several of its members have testified that they were told that the same rules applied to the Taliban --- that the Geneva Conventions don't apply --- would be used in Iraq.

The pleas of the accused and General Karpinski's claims also tend to be supported by some of the notorious photographs that have affected world opinion, insofar as one of the scenes of prisoners being forced to pose in simulated homosexual acts shows military intelligence officers and American "civilian contractor" mercenaries participating in that clear violation of the Geneva Conventions.

The redactions in this memo were made before it was leaked to the press, and both the origin of these excisions and the identity of the person or persons who leaked the memo are still obscure. However, in the argument on Capitol Hill administration supporters have more or less tactitly acknowledged the document's authenticity.

Classified by: Secretary Rumsfeld
Reason: 1.5 (C)
Declassify on: 10 years


Redacted
UNCLASSIFIED WHEN SEPARATED FROM ATTACHMENT
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II. International Law

(U) The following discussion addresses the requirements of international law, as it pertains to the Armed Forces of the United States, as interpreted by the United States. As will be apparent in other sections of this analysis, other nations and international bodies may take a more restrictive view, which may affect our policy analysis and thus is considered elsewhere.

A. The Geneva Conventions

(U) The laws of war contain obligations relevant to the issue of interrogation techniques and methods. It should be noted, however, that it is the position of the U.S. Government that none of the provisions of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Third Geneva Convention) apply to al Qaida detainees because, inter alia, al Qaida is not a High Contracting Party to the Convention. As to the Taliban, the U.S. Position is that the provisions of Geneva apply to our present conflict with the Taliban, but that Taliban detainees do not qualify as prisoners of war under Article 4 of the Geneva Convention. The Department of Justice has opined that the Geneva Convention Relative to the Protection of Civilian Personnel in time of War (Fourth Geneva Convention) does not apply to unlawful combatants.

B. The 1994 Convention Against Torture

(U) the United States’ primary obligation concerning torture and related practices derives from the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (commonly referred to as "the Torture Convention"). The United States Ratified the Convention in 1994, but did so with a variety of Reservations and Understandings.

(U) Article 1 of the Convention defines the term "torture" for purpose of the treaty. The United States conditioned its ratification of the treaty on an understanding that:

…in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or

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(paragraph redacted).

(U) Article I provides: "For the purpose of this convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him to an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consensus or acquiescence of a public official acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."



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Suffering refers to prolonged mental harm caused by or resulting from the intentional infliction or threatened infliction of severe physical pain or suffering; the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

(U) Article 2 of the Convention requires the Parties to "take effective legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction". The U.S. Government believed existing state and federal criminal law was adequate to fulfill this obligation, and did not enact implementing legislation. Article 2 also provides that acts of torture cannot be justified on the grounds of exigent circumstances, such as state of war or public emergency, or on orders from a superior officer or public authority. The United States did not have an Understanding or Reservation relating to this provision.

(U) Article 3 of the Convention contains an obligation not to expel, return, or extradite a person to another state where there are "substantial grounds" for believing that the person would be in danger of being subjected to torture. The U.S. understanding relating to this article is that it only applies "if it is more likely than not" that the person would be tortured.

(U) Under Article 5, the Parties are obligated to establish jurisdiction over acts of torture when committed in any territory under its jurisdiction or on board a ship or aircraft registered in that state, or by its nationals wherever committed. The "special maritime and territorial jurisdiction of the United States" under 18.U.S.C. § 7 satisfies the U.S. obligation to establish jurisdiction over torture committed in territory under U.S. jurisdiction or on board a U.S. registered ship or aircraft. However, the additional requirement of Article 5 concerning jurisdiction over acts or torture by U.S. nationals "wherever committed" needed legislative implementation. Chapter 113C of Title 18 of the U.S. Code provides federal criminal jurisdiction over an extraterritorial act or attempted act of torture if the offender is a U.S. national. The statute defines "torture" consistent with the U.S. Understanding on Article 1 of the Torture Convention.

(U) The United States is obligated under Article 10 of the Convention to ensure that law enforcement and military personnel involved in interrogations are educated and informed regarding the prohibition against torture. Under Article 11, systematic reviews of interrogation rules, methods, and practices are also required.

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(U) 18 U.S.C. § 2340 tracks this language. For a further discussion of the U.S. understandings and reservations, see the Initial Report of the U.S. to the U.N. Committee Against Torture, dated October 15, 1999.

(U) But see discussion to the contrary at the Domestic Law section on the necessity defense.



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(U) In addition to torture, the Convention prohibits cruel, inhuman and degrading treatment or punishment within territories under a Party’s jurisdiction (Art 16). Primarily because the meaning of the term "degrading treatment" was vague and ambiguous, the United States imposed a Reservation on this article to the effect that it considers itself bound only to the extent that such treatment or punishment means the cruel, unusual and inhuman treatment or punishment prohibited by the 5th, 8th, and 14th Amendments to the U.S. Constitution (see discussion infra, in the Domestic Law section),

(U) In sum, the obligations under the Torture Convention apply to the interrogation of unlawful combatant detainees, but the Torture Convention prohibits torture only as defined in the U.S. Understanding, and prohibits "cruel, inhuman, and degrading treatment and punishment" only to the extent of the U.S. Reservation relating to the U.S. Constitution.

(U) An additional treaty to which the United States is a party is the International Covenant on Political and Civil Rights, ratified by the United States in 1992. Article 7 of this treaty provides that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." The United States’ ratification of the Covenant was subject to a Reservation that "the United States considers itself bound by Article 7 only to the extent that cruel, inhuman, or degrading treatment or punishment means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments of the Constitution of the United States." Under this treaty, a "human Rights Committee" may. With the consent of the Party in question, consider allegations that such Party is not fulfilling its obligations under the Covenant. The United States has maintained consistently that the Covenant does not apply outside the United States or its special maritime and territorial jurisdiction, and that it does not apply to operations of the military during an international armed conflict.

C. Customary International Law

(U) The Department of Justice has concluded that customary international law cannot bind the Executive Branch under the Constitution, because it is not a federal law. In particular, the Department of Justice has opined that "under clear Supreme Court precedent, any presidential decision in the current conflict concerning the detention and trial of al-Qaida or Taliban militia prisoners would constitute a "controlling" Executive act that would immediately and completely override any customary international law."

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(U) Memorandum dated January 22, 2002, Re: Application of Treaties to al-Qaida and Taliban detainees at 32.

(U) Memorandum dated January 22, 2002, Re: Application of Treaties to al-Qaida and Taliban detainees at 35.



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III. Domestic Law

A. Federal Criminal Law

1. Torture Statute

(U) 18 U.S.C. § 2340 defines as torture any "act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain…" The intent required is the intent to inflict severe physical or mental pain. 18 U.S.C. § 2340A requires that the offense occur "outside the United States". Jurisdiction over the offense extends to any national of the United States or any alleged offender present in the United States, and could, therefore, reach military members, civilian employees of the United States, or contractor employees. The "United States" is defined to include all areas under the jurisdiction of the United States, including the special maritime and territorial jurisdiction (SMTJ) of the United States. SMTJ is a statutory creation that extends the criminal jurisdiction of the United States for designated crimes to defined areas. The effect is to grant federal court criminal jurisdiction for the specifically identified crimes.

(U) Guantanamo Bay Naval Station (GTMO) is included within the definition of the special maritime and territorial jurisdiction of the United States, and accordingly, is within the United States for the purposes of §2340, Thus, the Torture Statue does not apply to the conduct of U.S. personnel at GTMO. That GTMO is within the SMTJ of the United States is manifested by the prosecution of civilian dependents and employees living in GTMO in Federal District Courts based on SMTJ jurisdiction and Department of Justice opinion(11) and the clear intention of Congress as reflected in the 2001 amendment to the SMTJ. The USA Patriot Act (2001) amended § 7 to ad subsection 9, which provides:

"With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act--
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(U) Section 2340A provides, "Whoever outside the Unites States commits or attempts to commit torture shall be fined or imprisoned…"(emphasis added).

(U) 18 USC § 7, "Special maritime and territorial jurisdiction of the United States" includes and lands under the exclusive or concurrent jurisdiction of the United States.

(U) Several paragraphs of 19 USC § 7 are relevant to the issue at hand. Paragraph 7(3) provides: [SMTJ includes:] "Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place…" Paragraph 7(7) provides [SMTJ includes:] "Any place outside the jurisdiction of any nation to an offense by or against a nation of the United States." Similarly, paragraphs 7(1) and 7(5) extend SMTJ jurisdiction to "the high seas, and other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular state, and any vessel belonging in whole or in part to the United States…" and to "any aircraft belonging in whole or in part in the United States… while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State."

(U) 6 Op.OLC236 (1982). The issue was the status of GTMO for purposes of a statute banning slot-machines on "any land where the United States government exercises exclusive or concurrent jurisdiction."



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(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of maintaining those missions or entities, irrespective of ownership; and

(B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.

Nothing in this paragraph shall be deemed to supercede any treaty or international agreement with which this paragraph conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261(a) of this title.

(U) Any person who commits an enumerated offense in a location that is considered within the special maritime and territorial jurisdiction is subject tot the jurisdiction of the United States.

(U) For the purposes of this discussion, it is assumed that an interrogation done for official purposes is under "color of law" and that detainees are in DOD’s custody or control.

(U) Although Section 2340 does not apply to interrogations at GTMO, it would apply to U.S. operations outside U.S. jurisdiction, such as Afghanistan. The following analysis is relevant to such activities.

(U) To convict a defendant of torture, the prosecution must establish that: (1) the torture occurred outside the United States; (2) the defendant acted under color of law; (3) the victim was within the defendant’s custody or physical control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering; and (5) that the act inflicted severe physical or mental pain or suffering. See also S. Exec. Rep. No. 101-30, at 6 (1990). ("For an act to be "torture," it must… cause severe pain and suffering, and be intended to cause severe pain and suffering.")

a. "Specifically Intended"

(U) To violate Section 2340A, the statute requires that severe pain and suffering must be inflicted with specific intent. See U.S.C. § 2340(1). In order for a defendant to have acted with specific intent, he must have expressly intended to achieve the forbidden act.




Also in this section:
Panama News Briefs
Martín Torrijos begins to name his cabinet
PRD presents constitutional proposals
The Bush administration's torture memo

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