news-CIA

February 2, 2005

The CIA Exception: Can Intelligence Agents Subject Detainees to Inhuman and Degrading Treatment?

By Anthony Dworkin

Out of the various leaked memos, official statements and Congressional hearings relating to the interrogation of terrorist suspects, one narrative thread has emerged with increasing clarity: the Bush administration's absolute determination to ensure that CIA agents are able to interrogate terrorist suspects with the maximum degree of freedom to apply coercive pressure. In particular, it is clear that the U.S. government has tried to make sure that intelligence agents are not held to legal standards forbidding cruel, inhuman or degrading treatment.

Based on what we now know, we can trace this central preoccupation from the earliest days of the war on terror up to the written answers provided by Alberto Gonzales to the Senate Judiciary Committee. While disavowing the use of torture, the administration has done everything it can to ensure that intelligence agents operating outside the United States are free to employ techniques that (by the administration's standards) stop just short of torture -- techniques that would be clearly illegal if used within the United States or in any conventional military context.

Not Required to Meet Humane Standards

A revealing early statement on the subject is contained in an internal administration document summarizing the views of different government agencies on the legal framework that should apply to al-Qaeda and Taliban detainees. (The document was attached to a leaked memo from State Dept. legal adviser William H. Taft IV to White House Counsel Alberto Gonzales, dated February 2, 2002.) The memo records the views of various administration lawyers that the third Geneva Convention (relating to the treatment of prisoners of war) does not apply to the conflict with the Taliban and al-Qaeda. The memo adds: "CIA lawyers believe that, to the extent that GPW[the Geneva Convention on Prisoners of War]'s protections do not apply as a matter of law but those protections are applied as a matter of policy, it is desirable to circumscribe that policy so as to limit its application to the CIA."

Their belief was evidently shared. President Bush's directive of February 7, 2002, titled "Humane Treatment of al-Qaeda and Taliban Detainees," stated only that "the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." In written answers to the Senate Judiciary Committee, White House Counsel Alberto Gonzales confirmed that this policy "was designed to provide guidance to the United States armed services." Asked by Senator Leahy whether the directive applied to CIA and other non-military personnel, Gonzales replied, "No."

The Geneva Conventions and Customary Laws of War

Beyond this directive, the administration has interpreted international and domestic law in a way that seems carefully designed to exclude CIA agents operating outside the United States from restrictions on inhumane treatment.

The Geneva Conventions forbid the use of any coercion against prisoners of war or detained civilians. The administration has declared that the Geneva Conventions do not apply to al-Qaeda detainees, while Taliban detainees should not be regarded either as prisoners of war or civilians. The administration further argues that Common Article 3 of the Geneva Conventions, which provides minimum standards in all armed conflict that is not international (meaning between nation-states), does not apply because the war on terror is international. Therefore the administration claims that no formal part of the international law of armed conflict applies to the treatment of detained terrorist suspects.

Beyond the written law, the United States along with all other democratic countries has traditionally recognized the existence of customary law -- unwritten rules that are sufficiently widely acknowledged and followed that they are regarded as binding. Indeed in 2003 the legal adviser to the State Department, William Taft, affirmed that under customary international law, "certain minimum standards apply to the detention of even unprivileged belligerents - they are not 'outside the law.'" Taft continued: "Terrorists forfeit any claim to POW status under the laws of armed conflict, but they do not forfeit their right to humane treatment - a right that belongs to all humankind, in war and in peace. It is a general principle of civilized societies that inhumane treatment is cruel and unacceptable under any circumstance."

Following traditional U.S. policy, Taft stated that the "customary law notion of fundamental guarantees" found expression in Article 75 of the first Additional Protocol of 1977. The United States "does regard the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled," Taft wrote. (His article was published in the Yale Journal of International Law, Summer 2003.) Article 75 forbids "violence to the life, health, or physical or mental well-being" of anyone in the power of an enemy, as well as "outrages upon personal dignity, in particular humiliating and degrading treatment."

Despite these statements, it now appears that the White House does not recognize customary international law as constraining the actions of US government agents. Gonzales did not mention customary law during his hearing before the Senate Judiciary Committee (for instance he did not include it in the list of relevant laws he provided in reply to the written question from Senator Feinstein, asking what rights detained terrorists had under U.S. or international law). In other documents, influential legal officials within the Bush administration have dismissed customary international law, in line with the claim of sovereigntist conservative legal thinkers that customary law does not form part of the law of the United States and therefore is not binding on Presidential actions.

For instance, a memo written by John Yoo and Robert Delahunty of the Justice Department in January 2002 argues that "customary international law cannot bind the executive branch under the Constitution because it is not federal law." Prosecutors at the military commissions underway at Guantanamo Bay to try suspected terrorists have asserted that the proceedings are governed not by any international law (not even customary international law) but simply by "commission law", which is comprised of orders, instructions and memorandums written by U.S. government and military personnel.

In this way, the Bush administration appears to be following a radically conservative view -- departing from the traditional analysis of the U.S. armed forces and State Department -- that simply dismisses out of hand all international law that is not (in their eyes) enforceable in U.S. courts.

A New Interpretation of the Torture Convention

Finally, there is another international treaty that sets limits on coercive interrogation: the Convention Against Torture, which the United States ratified in 1994. The Torture Convention requires signatories to make torture illegal under all circumstances. It also requires them to ensure that "other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture" are not carried out by government agents. When the United States ratified the Torture Convention, it entered a reservation saying that it would only observe this "insofar 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."

This reservation has generally been interpreted as relating to the definition of treatment that the United States regards the Convention as proscribing: the United States would interpret the term "cruel, inhuman and degrading treatment" in line with way that U.S. courts had understood the prohibitions on cruel, unusual and inhumane treatment in the Constitution. But in his answers to the Senate Judiciary Committee, Gonzales made a different argument: that the prohibition in the Torture Convention should be limited by both the definition and reach of the U.S. Constitution.

In other words, the Convention against Torture creates (according to Gonzales) no additional obligations on U.S. officials as regards cruel, inhuman and degrading treatment than already exist under U.S. constitutional law -- and protects no one who is not already protected. Since (according to the administration) the U.S. Constitution does not apply to non-citizens outside the United States, Gonzales claimed that "there is no legal prohibition under the Convention Against Torture on cruel, inhuman and degrading treatment with respect to aliens overseas."

This argument has been vigorously disputed by other legal experts. Harold Hongju Koh, dean of the Yale Law School and formerly Assistant Secretary of State for Human Rights under President Clinton, told the Los Angeles Times that "the law is clear -- there's no exceptions, and it is universal." Moreover, the notion that the due process rights inherent in the Fifth Amendment to the Constitution (which prohibits acts that "shock the conscience") do not apply under any circumstances to aliens overseas was seemingly rejected by the Supreme Court in last year's ruling on the rights of Guantanamo detainees (though the precise implications of the ruling remain uncertain).

Resisting a Restatement of the Rules

In his written replies to the Judiciary Committee, Gonzales said that the administration wanted to be in compliance with the constitutional standards on humane treatment with respect to all detainees, even where it was not legally required. As we've already seen, however, the President resisted the opportunity to direct non-military government agents to treat detainees in a humane way. Moreover, the administration fought off a recent Congressional attempt to enshrine such standards in new legislation. The Senate initially included a requirement that intelligence agents refrain from inhumane treatment in a bill on intelligence reform drafted last fall (Section 1014 of S.2845). The bill as drafted stated that it was U.S. policy to treat all foreign prisoners "humanely and in accordance with standards that the United States would consider legal if perpetrated by the enemy against an American prisoner." It required that "no prisoner shall be subject to torture or cruel, inhumane, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States," and required that the administration report to Congress about the investigation of any possible violation.

But according to a report in the New York Times, this provision was dropped from the final bill after the White House expressed strong opposition. One public statement of the White House's views came in a letter from Condoleezza Rice, then-National Security Adviser, and Joshua Bolten of the Office of Management and Budget. They said the administration opposed the measure because it provided "legal protections to foreign prisoners to which they are not now entitled under applicable law and policy" (a line that Judge Gonzales repeated in his written answers to the Senate Judiciary Committee). Senator Susan Collins (R-Maine) told the New York Times that she believed that intelligence committees on Capitol Hill would take up the question later this year.

One of the Senators who introduced the provision on humane treatment in the intelligence bill was Senator Richard Durbin (D-Illinois). On February 2 he made a statement describing the administration's attempts to roll back recognized prohibitions against inhumane treatment as "shocking" and said, for that reason amongst others, that he would vote against confirming Alberto Gonzales as Attorney General.

Related Chapters from Crimes of War: What the Public Should Know:

Terrorism

Torture

(From SCOTUSblog)

Responses of Alberto R. Gonzales to the Written Questions of Senator Patrick Leahy (.pdf file)

Balkinization

(This blog has had excellent coverage of the Gonzales hearings and the administration's policy on interrogation -- see particularly the entry for January 18, 2005, titled "Judge Gonzales' Senate Responses.")

Memorandum from William H. Taft IV to Alberto R. Gonzales

February 2, 2002

(See attached document "Status of Legal Discussions re Application of Geneva Convention to Taliban and al-Qaeda)

Humane Treatment of Taliban and al-Qaeda (.pdf file)

Presidential Directive

Febrary 7, 2002

Memorandum for William J. Haynes II from John Yoo and Robert J. Delahunty (.pdf file)

January 9, 2002

White House Fought New Curbs on Interrogations, Officials Say

By Douglas Jehl and David Johnston

The New York Times, January 13, 2005

(requires archive purchase)