Human Rights and the War on Terror

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Chapter 9
Human Rights and the War on Terror


While waging the War on Terror, U.S. military forces have captured many individuals who are classified as enemy combatants. Historically, the United States has treated enemy soldiers in accordance with specific humanitarian standards and international agreements, such as the Geneva Conventions. Soon after the war in Afghanistan began in 2001, the administration of President George W. Bush (1946) decided that most combatants fighting against the United States are not soldiers in the traditional sense but are war criminals. As such, they are not granted the protections against torture and humiliating treatment that are afforded prisoners of war (POWs) under international law. In addition, the Bush administration decided that detainees would be tried for their crimes by special U.S. military commissions (or tribunals) rather than by conventional courts-martial. These decisions have led to a long battle in U.S. courts over the legal status of detainees and a public debate about the power of the president in times of war.

There have been allegations in the media and by humanitarian organizations that detainees under U.S. control have been mistreated, tortured, and abused. A prisoner abuse scandal at the Abu Ghraib Detention Facility in Iraq made worldwide headlines and brought harsh criticism of the United States in the international community. The American public has watched uneasily as these events have unfolded. On the one hand, the public recognizes the life-and-death urgency of obtaining information from detainees about plans for future terrorist attacks against the United States. On the other hand, public opinion polls show a majority of Americans are opposed to torturing detainees to gain this information. However, this opposition is not overwhelming. Weighing the concerns of national security against the human rights of known or suspected terrorists clearly poses a difficult moral and ethical dilemma for the United States.


The Geneva Conventions are a series of international agreements related to humanitarian conduct during warfare. Their conception is linked to the birth of the International Committee of the Red Cross (ICRC). Both were inspired by the efforts of Jean-Henri Dunant (1828 1910), a businessman and author who lived in Geneva, Switzerland. In 1859 Dunant was traveling through Italy when he witnessed the battle of Solferino, a bloody conflict that was waged as part of the Second Italian War of Independence (1859) by French, Austrian, and Sardinian armies. The battle left 2,000 killed and over 20,000 wounded. Dunant was horrified by the lack of treatment afforded the wounded soldiers of the losing side. In 1862 he published the book Un souvenir de Solferino (A Memory of Solferino), in which he wrote about his observations and suggested that an international society be established and charged with recruiting trained volunteers to care for wounded soldiers during and after armed conflicts.

The First Geneva Convention

With the help of the Geneva Society for Public Welfare, Dunant convinced a dozen European nations to participate in a conference that ultimately led to an international treaty on the treatment of wounded soldiers during warfare. This became known as the First Geneva Convention. It granted neutrality on the battlefield to medical personnel working under the emblem of a red cross on a white background. Dunant's committee, originally called the International Committee for Relief to the Wounded, was renamed the International Committee of the Red Cross. In 1901 Dunant was a corecipient of the first-ever Nobel Peace Price.

According to the ICRC, in From the Battle of Solferino to the Eve of the First World War (December 28, 2004,, the First Geneva Convention was ratified (enacted into law) in 1864 by ten European governments: Belgium, Denmark, France, the Grand Duchy of Baden (later a part of Germany), Italy, the Netherlands, Norway, Spain, Sweden, and Switzerland.

The United States did not ratify the First Geneva Convention until 1882. The ratification was finally achieved largely due to the efforts of Clara Barton (18211912), who had volunteered as a nurse during the U.S. Civil War (18611865) and worked for many humanitarian causes. In 1878 she published the influential book The Red Cross of the Geneva Convention: What It Is, in which she urged U.S. legislators to ratify the Geneva Convention. Barton argued that the convention concerned if not our safety, at least our honor, to signify our approval of those principals of humanity acknowledged by every other civilized nation. In 1881 the American Society of the Red Cross was founded and elected Barton as its first president. A year later the U.S. Senate unanimously ratified the First Geneva Convention.

Geneva Conventions Evolve

At the urging of the czar Nicholas II (18681918) of Russia, the First International Peace Conference was held in 1899 at The Hague in the Netherlands. More than two dozen nations participated, including the United States. Even though the conference was intended to negotiate arms control agreements, this goal was not achieved. A number of humanitarian agreements were signed but never ratified. In 1907 a Second International Peace Conference was held at The Hague in response to a proposal made by President Theodore Roosevelt (18581919). Again, many agreements were signed by the participants but not ratified by the signatories. However, these agreements laid the groundwork for international treaties that eventually extended the provisions of the First Geneva Convention to cover naval warfare (Second Geneva Convention), the treatment of POWs (Third Geneva Convention), and the treatment of civilians during warfare (Fourth Geneva Convention).

When World War I (19141918) was fought, the Geneva Conventions protecting POWs and civilians were not in force. The Third Geneva Convention was adopted in 1929. Its official title was the Convention Relative to the Treatment of Prisoners of War. The third convention was designed to carry out the intent and purpose of the provisions of the agreements reached at The Hague peace conferences. The United States ratified the convention in 1932, as did most other major nations with two exceptions: Russia and Japan. Both nations were subsequently accused of mistreating POWs during World War II (19391945). In general, historians agree that the United States treated POWs well in hopes that American POWs held in foreign lands would receive similar treatment.

Following World War II, many nations resolved to expand and modify the Geneva Conventions in response to atrocities committed during the war. In 1949 the modern framework of the four conventions was established. (See Table 9.1.) The United States has signed and ratified all four of the Geneva Conventions.

Since 1949 three protocols have been added to the conventions. As of September 2008, the United States had not ratified them.

Common Article 3

Each of the four Geneva Conventions contains a provision known as Article 3. According to M. Gandhi, in Common Article 3 of Geneva Conventions, 1949 in the

TABLE 9.1 The Geneva Conventions
PartTitleTreaty dateRatified by U.S.Scope
aThe United States signed the protocol, but as of September 2006 had not ratified it. Other signatories that have not ratified the protocol are Iran, Morocco, and Pakistan. bThe United States signed the protocol, but as of September 2006 had not ratified it, nor had dozens of other signatories.
SOURCE: Created by Kim Masters Evans for Cengage Learning, Gale, 2008
First Geneva ConventionAmelioration of the condition of the wounded in armies in the field19491955Concerns treatment of sick and wounded military forces and the neutrality of medical personnel assisting them
Second Geneva ConventionAmelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea19491955Extends First Geneva Convention to naval warfare
Third Geneva ConventionTreatment of prisoners of war (POW)19491955Calls for humane treatment of POWs and all other combatants no longer active in hostilities
Fourth Geneva ConventionProtection of civilian persons in time of war19491955Governs the status and protection of civilian populations during wartime
Protocol IProtection of victims of international armed conflicts1977NoaProtects people involved in battles for self-determination of their nations
Protocol IIProtection of victims of non-international armed conflicts1977NoaProtects people involved in internal national conflicts
Protocol IIIAdoption of an additional distinctive emblem2005NobAdds a new distinctive emblem called the red crystal

Era of International Criminal Tribunals (November 21, 2002,, this is called Common Article 3 because it is common to (appears in) all four conventions. Common Article 3 contains minimum humanitarian standards for the treatment during noninternational armed conflicts of persons taking no active part in the hostilities. These people include civilians (noncombatants) and enemy soldiers who have surrendered or who can no longer fight because they are wounded, sick, or otherwise incapacitated or detained.

Common Article 3 prohibits at any time and in any place whatsoever all the following acts against these people:

  • Violence, including torture, cruel treatment, mutilation, or murder
  • Holding them as hostages
  • Humiliating and degrading treatment or other outrages upon personal dignity
  • Criminal punishments, including executions, passed without due legal process; this provision specifically requires that defendants receive all the judicial guarantees which are recognized as indispensable by civilized peoples

In addition, Common Article 3 requires that the wounded and sick be collected and given care and that a neutral international organization, such as the ICRC, be allowed to provide services to the parties involved in the armed conflict.

Even though Common Article 3 specifies that it applies to noninternational armed conflicts, in practice it has historically been deemed to represent the minimum humanitarian standards for all armed conflicts, including international ones.


The United Nations (UN) Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment entered into force in 1987. The United States signed the convention in 1984 and ratified it in 1994. The UN Office of the High Commissioner for Human Rights (UNHCHR; February 26, 2004, explains that the convention defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for one of the following reasons:

  • Obtaining information or a confession
  • Punishment
  • Intimidation or coercion
  • Any reason based on discrimination of any kind

The convention covers torture inflicted by, instigated by, or with the consent or acquiescence of a public official or someone acting in an official capacity. Implementation of the convention is monitored by a ten-member Committee against Torture. Each ratifying party is required to report to the committee every four years. The committee also investigates complaints filed by individuals and by nations against other nations.

According to the UNHCHR (November 10, 2003,, in 2002 an optional protocol to the convention was adopted that calls for regular visits by independent bodies to places where people are deprived of their liberty to ensure that torture and other treatments prohibited by the convention are not taking place. As of September 2008, the United States had neither signed nor ratified the optional protocol.


The War Crimes Act of 1996 was signed by President Bill Clinton (1946) in August 1996 and amended in 1997. The act applies to American victims or perpetrators (military or civilian) of war crimes. A war crime is defined by the act as conduct meeting any one of the following definitions:

  • A grave breach of the Geneva Conventions (and any associated protocols) to which the United States is a party
  • A violation of Common Article 3 of the Geneva Conventions
  • An activity prohibited by the annex to the 1907 Hague peace conference (the text can be viewed at
  • An activity prohibited by the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps, and Other Devices (Geneva, May 1996) that purposely kills or seriously injures civilians (the text can be viewed at

The penalties for violating the War Crimes Act of 1996 include fines and imprisonment up to life in prison. The death penalty is allowed for perpetrators of war crimes in which victims are killed.


The U.S. War on Terror is unique in U.S. history, because the enemy forces do not comprise soldiers officially fighting on behalf of other nations but individuals from various countries fighting for a common agenda or ideological purpose that the U.S. government defines as terrorism. When the United States launched the first military conflict in the War on Terror (Operation Enduring Freedom against Afghanistan in late 2001), President

Bush made the decision that terrorists captured during the course of the war would be regarded as enemy combatants.

Enemy Combatants

In Guantanamo Detainee Processes (October 2, 2007, the U.S. Department of Defense (DOD) defines an enemy combatant as an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Once terrorists were declared enemy combatants, they left the realm of law enforcement and became legitimate targets of military action. In other words, terrorists could be killed outright by U.S. soldiers during the course of hostilities. Likewise, captured terrorists fell under military jurisdiction rather than law enforcement jurisdiction.

An important distinction in U.S. law is the difference between a lawful and unlawful enemy combatant. When the War on Terror began, the U.S. position was that lawful enemy combatants were uniformed members of an enemy nation's armed forces that adhered to a military hierarchy, bore their weapons openly, and conducted their operations in accordance with the laws and customs of warfare. Terrorists do not meet these criteria and as a result were deemed unlawful enemy combatants. The historical and legal basis for this distinction is described by Scott Reid in Terrorists as Enemy Combatants: An Analysis of How the United States Applies the Law of Armed Conflict in the Global War on Terrorism (February 9, 2004, http://fasorg/man/eprint/reidpdf). Reid notes that a nation must be expected to put uniforms on its troops in order to reap the benefits of lawful combatancy. These benefits include protections granted under the Geneva Conventions for POWs.

The Bush administration has maintained that captured unlawful enemy combatants are not POWs under the Geneva Conventions but war criminals. The logic behind this viewpoint is that the Geneva Conventions are international treaties signed and ratified by nation-states. Because terrorist groups such as al Qaeda are private organizations, they cannot be party to the conventions. Foreign individuals fighting against the United States without official sanction from their governments also cannot be party to the conventions.

Guantánamo Bay Detention Facility

Many of the enemy combatants captured during the War on Terror have been detained at a detention facility located at the U.S. Naval Base Guantánamo Bay in Cuba. (For a map of Cuba, see Figure 6.3 in Chapter 6.) This facility has been nicknamed Gitmo by the press and is often abbreviated as GTMO in U.S. military documents.

The initial screening of a captured individual is performed by military officials on the battlefield. The DOD states in GTMO Detainee Processes (November 14, 2005, that these officials determine whether a captured individual is an enemy combatant, and if so, whether that person should be transferred to Guantánamo for incarceration.

Legal Rights under U.S. Law

The detention of terrorists as unlawful enemy combatants during wartime has triggered many court battles regarding their legal rights under U.S. law and the power of the executive branch (i.e., the president and the agencies under his control) over detainees. A chronological listing of the major milestones in this legal battle is provided in Table 9.2.

In Ex Parte Quirin (317 U.S. 1 [1942]), the U.S. Supreme Court decided that President Franklin D. Roosevelt (18821945) had the authority to convene a military tribunal to try eight civilian Germans who had entered the United States to commit sabotage during World War II. Six of the men were ultimately executed in the electric chair. The Court noted that unlawful combatants could be subjected to trial and punishment by military tribunals, rather than by civilian courts.

On September 18, 2001, Congress passed the Authorization for Use of Military Force &docid=f:publ040.107.pdf), which states: The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines

TABLE 9.2 Important milestones in U.S. policies regarding detainee treatment, 2001-08
SOURCE: Created by Kim Masters Evans for Cengage Learning, Gale, 2008
Authorization for use of military forceSeptember 18, 2001Public Law 107-40
Detention, treatment, and trial of certain non-citizens in the war against terrorismNovember 13, 2001Presidential military order
Hamdi v. RumsfeldJune 28, 2004Supreme Court case
Rasul v. BushJune 28, 2004Supreme Court case
Combatant status review tribunal processJuly 7, 2004Process established by U.S. Department of Defense
Detainee Treatment Act of 2005December 30, 2005Public Law 109-148 Title X
Hamdan v. RumsfeldJune 29, 2006Supreme Court case
Military Commissions ActOctober 17, 2006Public Law 109-366,
Title X
Boumediene v. BushJune 12, 2008Supreme Court case

planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Two months later President Bush signed the military order The Detention, Treatment, and Trial of Certain Non-citizens in the War against Terrorism (November 13, 2001,, which granted him power to determine whether or not a captured person was a member of al Qaeda and had committed terrorist acts or harbored terrorists. It also stated that military commissions (or tribunals) would be used to try unlawful enemy combatants captured during the War on Terror.

HAMDI V. RUMSFELD AND RASUL V. BUSH. In June 2004 the U.S. Supreme Court made two rulings regarding detainee legal rights. The first ruling, Hamdi v. Rumsfeld (542 U.S. 507), involved an American citizen named Yaser Esam Hamdi. Hamdi was captured in Afghanistan during 2001 by forces of the Northern Alliance, a rebel group working with the United States to overthrow the Taliban. Hamdi was accused of being part of a Taliban military unit. He was turned over to U.S. authorities, who labeled him an enemy combatant. Initially imprisoned at Guantánamo, Hamdi was transferred to a U.S. brig in 2002 after authorities learned that he was an American citizen. His father filed a petition for a writ of habeas corpus alleging that his son was being held illegally without access to legal counsel and without being formally charged with a crime, both of which violate the U.S. Constitution. The Supreme Court ruled in favor of Hamdi, finding that even though the military had the authority to detain him, he had the right as a U.S. citizen to contest his detention before a neutral decision-maker. Months after the ruling, Hamdi was released without being charged. The Court did recognize the authority of the executive branch to hold detainees for the duration of the War on Terror.

The second ruling, Rasul v. Bush (542 U.S. 466), involved two Australians and twelve Kuwaitis who were being held as enemy combatants at Guantánamo. The detainees filed a petition in U.S. district court challenging the legality of their detention. They claimed they had never been charged with a crime, permitted to have legal counsel, or provided access to the courts. The district court considered the petition a request for habeas corpus and dismissed it, because this right has previously been deemed not to extend to aliens detained outside United States sovereign territory. However, the U.S. Supreme Court overruled the district court, ruling that the Naval Base Guantánamo Bay is under the complete jurisdiction and control of the United States. The ruling precipitated the filing of dozens of habeas petitions on behalf of Guantánamo detainees.

On July 7, 2004, the DOD announced in the press release Combatant Status Review Tribunal Order Issued the creation of a Combatant Status Review Tribunal (CSRT) Process for detainees held at the Guantánamo Bay Detention Facility. The DOD described the CSRT as a forum for detainees to contest their status as enemy combatants.

THE DETAINEE TREATMENT ACT OF 2005. In December 2005 the Detainee Treatment Act of 2005 was signed into law. A summary of the law is provided by Michael John Garcia of the Congressional Research Service (CRS) in Boumediene v. Bush: Guantanamo Detainees Right to Habeas Corpus (June 18, 2008, natsec/RL34536.pdf). According to Garcia, the act eliminated the jurisdiction of federal courts to consider habeas claims by aliens that challenged their detention at Guantánamo. The U.S. Court of Appeals for the D.C. Circuit was granted sole jurisdiction over the review of determinations made by CSRTs or military commissions. In other words, the act made clear that alien combatants detained outside the United States do not have constitutional rights. It also stripped the courts of jurisdiction to hear habeas corpus claims from detainees.

HAMDAN V. RUMSFELD . In June 2006 the Supreme Court ruled in Hamdan v. Rumsfeld (000 U.S. 05-184) that U.S. law does not allow military tribunals such as those created by President Bush's military order. The case centered on a Yemeni citizen named Salim Ahmed Hamdan, who was allegedly a chauffeur for Osama bin Laden (1957) in Afghanistan. In 2001 Hamdan was captured during Operation Enduring Freedom and sent to the Guantánamo Bay Detention Facility. In 2004 he was officially charged with conspiracy to commit war crimes, murder, and terrorism. Hamdan's lawyers successfully argued that the president did not have the power under the Constitution to establish military commissions to try enemy combatants. Following the ruling, President Bush announced his intentions to work with Congress to set up a suitable legal process for detained enemy combatants.

On July 7, 2006, the DOD ordered all of its personnel to begin treating detainees in accordance with the Third Geneva Convention, which requires POWs to be afforded certain judicial guarantees (such as the right to challenge their detention). Days later, congressional hearings began on developing a constitutional process for trying detain-ees. One of the key issues was the handling of classified information during trial. The DOD officials testified that the court-martial process under the Uniform Code of Military Justice is not suitable for detainees, because it could require the release of intelligence information that could harm national security.

THE MILITARY COMMISSIONS ACT OF 2006. The Military Commissions Act of 2006 was the congressional response to

Hamden v. Rumsfeld. It established procedures for the use of military commissions to try alien unlawful enemy combatants who engaged in hostilities against the United States. The act is described in detail by Jennifer K. Elsea of the CRS in The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice (September 27, 2007, http://wwwfasorg/sgp/crs/natsec/RL33688pdf). Elsea explains that the act authorized the president to establish military commissions and allowed the DOD to create rules for the commissions that differed from the rules of the Uniform Code of Military Justice.

In March 2007 the Australian David Hicks was the first Guantánamo Bay detainee sentenced under the Military Commissions Act. Hicks had been detained since 2002 and had been charged with many serious crimes, including attempted murder and conducting terrorist acts for the Taliban in Afghanistan. He ultimately pleaded guilty to only one charge (providing material support for terrorism) and was turned over to Australia to serve the remaining nine months of his sentence.

BOUMEDIENE V. BUSH . In June 2008 the U.S. Supreme Court ruled in Boumediene v. Bush (000 U.S. 06-1195; combined with Al Odah v. United States) that alien enemy combatants detained at Guantánamo do have the constitutional privilege of habeas corpus. The ruling is described in detail by Garcia, who notes that the Court found unconstitutional the section of the Military Commissions Act that stripped the courts of jurisdiction to hear habeas corpus claims.

In How Guantanamo Ruling Affects Detainees (Atlanta Journal-Constitution, June 15, 2008), Carol J. Williams examines the effects of the ruling on the Guantánamo detainees. Williams reports that at the time of the Supreme Court ruling there were approximately 270 detainees at Guantánamo, 250 of which were being held without charge. Nineteen of the detainees had already been charged, and their trials were expected to proceed. Williams notes that lawyers for many of the uncharged detain-ees believed civilian judges will release the detainees due to lack of government evidence against them.

HAMDAN IS SENTENCED . In August 2008 Hamdan was found guilty of providing material support to terrorism. He was acquitted of a more serious conspiracy charge. Even though Hamdan faced a sentence of life in prison, he was sentenced to only sixty-six months in prison. Because he had already been detained for five years and one month, the judge ruled that Hamdan would serve only five additional months in prison. The sentence was deemed surprisingly light by many in the media. There was also widespread speculation about whether the DOD would, in fact, release Hamdan when his sentence was completed. The DOD has frequently insisted that it will not release any detainee who still poses a threat to U.S. national security. As of September 2008, the DOD had not issued an official statement on its intentions regarding Hamdan's release.

THE GUANTÁNAMO DETAINEE PROCESSES . Table 9.3 shows the official DOD list of legal processes for Guantánamo detainees in effect as of October 2007. Every detainee is eligible for an annual administrative review by DOD personnel to determine whether that individual should continue to be detained or not. These decisions are based on intelligence assessments performed as part of Detainee Operations about the detainee and the threat believed posed by that individual to U.S. national security. Every detainee is also subject to the CSRT process, which determines whether a detainee is designated an enemy combatant. Detainees who are not U.S. citizens are subject to commissions (i.e., military commissions or tribunals) that prosecute enemy combatants who have violated the laws of war.

TABLE 9.3 Legal processes for detainees at Guantánamo Bay (GTMO), October 2007
ProcessDefinition/purposeApplies toResponsibility
*Enemy combatant is defined as an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
SOURCE: Adapted from Guantanamo Detainee Processes in Guantanamo Detainee Processes, U.S. Department of Defense, October 2, 2007, (accessed August 8, 2008)
Admin reviewAnnual review to assess whether an individual should be released, transferred or should continue to be detained, based on threat or continued intelligence value.All GTMO detainees.Designated civilian official (Secretary of the Navy)
Combatant status reviewDetermine whether a person meets the criteria to be designated as an enemy combatant.*All GTMO detainees.Designated civilian official (Secretary of the Navy)
CommissionsProsecute enemy combatants who violate the laws of war.Non-U.S. citizens based upon the individual's participation in al Qaeda and acts of international terrorism.Office of Military Commissions
Detainee operationsDetain enemy combatants to prevent them from continuing to fight against the U.S. and it allies.All GTMO detainess.Joint Task Force (JTF) GTMO


U.S. military operations in Afghanistan and Iraq have resulted in the capture of thousands of enemy combatants, both lawful and unlawful. Some of the methods used by the United States to detain, treat, and interrogate these prisoners have come under harsh criticism. One detention facility in particular became the focus of intense media attention because of disturbing allegations about mistreatment, torture, and abuse. This was the Abu Ghraib Detention Facility near Baghdad, Iraq.

Abu Ghraib

Abu Ghraib was already notorious in Iraq as the location of a prison run by the regime of Saddam Hussein (19372006) in which prisoners were routinely tortured and executed. Following the invasion of Iraq in March 2003, the U.S. military began using the facility to detain prisoners. These included both enemy combatants and common criminals. In January 2004 a soldier named Joseph Darby told his commanding officer at Abu Ghraib that fellow soldiers from the 372nd Military Police Company had been abusing prisoners. Darby's statements led the U.S. Army to launch an internal investigation. A few months later the abuses were reported to the public by the television news program 60 Minutes and in the New Yorker magazine. These reports included many digital photos taken by soldiers at Abu Ghraib that showed prisoners posed in sexually explicit positions and enduring humiliating and abusive treatment. Many of the photos included smiling U.S. soldiers posing with the prisoners.

The photos caused an uproar around the world and inflamed anti-American sentiment, particularly among Muslim populations. A series of investigations was launched by U.S. officials. Eventually, the Final Report of the Independent Panel to Review DoD Detention Operations (August 2004, was issued by the Independent Panel to Review DOD Detention Operations, a group created by the U.S. secretary of defense Donald Rumsfeld (1932). The panel concluded that acts of brutality and purposeless sadism had been committed at the detention facility by both military police and military intelligence personnel. This deviant behavior on the part of U.S. personnel was blamed on a failure of military leadership and discipline. Aggravating factors included severe overcrowding and under-staffing (approximately ninety U.S. personnel were responsible for guarding up to seven thousand prisoners) and frequent attacks on the facility by local insurgents.

The panel found that the abuses depicted in the photographs were conducted primarily for the entertainment of the U.S. personnel involved and were not part of interrogation procedures. In fact, the victims in the photographs were not intelligence targets but civilian or criminal detainees. However, the panel noted that additional egregious abuses that were not photographed occurred during interrogation sessions. The lack of clear guidance on interrogation techniques was a major problem. Over the course of several months, U.S. personnel used various versions of interrogation techniques, some of which had only been officially approved for use on certain unlawful combatants at Guantánamo Bay with the specific permission of the secretary of defense.

As of September 2008, eleven U.S. soldiers had been convicted of crimes related to the abuse of detainees at Abu Ghraib. The harshest sentence handed out was ten years in prison. It was imposed on the alleged ringleader of the group, Charles Graner Jr., who was responsible for most of the abuse. In January 2008 the only officer charged in the case, Lieutenant Colonel Steven Jordan, was acquitted of all but one charge: failure to obey an order. He received a reprimand, but no jail time.

Interrogation Techniques

Confusion about appropriate interrogation techniques among U.S. military personnel in Afghanistan and Iraq was well documented in the panel's final report. Table 9.4 lists interrogation techniques that were approved by DOD officials at one point or another between 2002 and 2004 for use on unlawful enemy combatants at the Guantánamo Bay Detention Facility.

The techniques in use during much of 2002 came from the U.S. Army Field Manual dating from 1992. In December 2002 Rumsfeld approved additional, more intense, techniques for use under certain conditions and with his express approval on specific detainees at Guantánamo Bay. Many of these techniques lost their approval only a few weeks later in January 2003 after concerns were raised about their legality by military legal experts. U.S. officials later learned that the December 2002 list was widely circulated in Afghanistan and Iraq and some commanders mistakenly assumed it applied to detainees under all circumstances.

In April 2003 the list was revised again, reauthorizing two of the more intense techniques and authorizing three new techniques known as environmental manipulation (such as exposure to loud music), sleep adjustment (changing the regular sleeping hours of a detainee; this technique does not include sleep deprivation), and the false-flag technique (fooling a detainee into believing that he is being questioned by a representative from another country, typically a Muslim country).

In January 2006 a military jury found Lewis Welshofer Jr., a U.S. Army interrogator, guilty of negligent homicide and negligent dereliction of duty for the 2003 death of the Iraqi major general Abed Hamed Mowhoush. Welshofer allegedly put a sleeping bag over Mowhoush (who was bound and gagged) and sat on the Iraqi's chest during

TABLE 9.4 Department of Defense-approved interrogation techniques for Guant-namo Bay detainees, 2004
Interrogation techniquesFM 34-52 (1992) Jan 02-01 Dec 02Secretary of Defense approved tiered system 02 Dec 02-15 Jan 03FM 34-52 (1992) with some Cat I 16 Jan 03-15 Apr 03Secretary of Defense memo 16 Apr 03-present
*Techniques require SOUTHCOM approval and SECDEF notification. Notes: MRE_meal,ready to eat. FM_field manual. Cat_category.
SOURCE: Evolution of Interrogation TechniquesGTMO, in Final Report of the Independent Panel to Review DoD Detention Operations, U.S. Department of Defense, August 2004, (accessed August 11, 2008)
Direct questioningXXXX
Incentive/removal of incentiveXXXX
Emotional loveXXXX
Emotional hateXXXX
Fear up harshXXXX
Fear up mildXXXX
Reduced fearXXXX
Pride and ego upXXXX
Pride and ego downXXXX
We know allXXXX
Establish your identityXXXX
Repetition approachXXXX
File and dossierXXXX
Mutt and Jeff   X*
Rapid fireXXXX
Change of sceneXXXX
Yelling X (Cat I)X 
Deception X (Cat I)  
Multiple interrogators X (Cat I)X 
Interrogator identity X (Cat I)X 
Stress positions, like standing X (Cat II)  
False documents/reports X (Cat II)  
Isolation for up to 30 days X (Cat II) X*
Deprivation of light/auditory stimuli X (Cat II)  
Hooding (transportation & questioning) X (Cat II)  
20-interrogations X (Cat II)  
Removal of ALL comfort items, including    
religious items X (Cat II)  
MRE-only diet X (Cat II) X*
Removal of clothing X (Cat II)  
Forced grooming X (Cat II)  
EXploiting individual phobias, e.g. dogs X (Cat II)  
Mild, non-injurious physical contact, e.g. grabbing,    
poking or light pushing X (Cat III)  
Environmental manipulation   X
Sleep adjustment   X
False flag   X

questioning. An autopsy found the general died of suffocation. Welshofer was originally charged with murder but was acquitted of that charge. He was given a reprimand, fined $6,000, and ordered to undergo virtual house arrest for sixty daysa sentence that the article Officer to Serve No Jail Time for Iraqi General's Death (USA Today, January 23, 2006) said was surprisingly light. During his trial the defense argued that Welshofer was under high pressure from his superiors to obtain information from Mowhoush but had no clear guidance on what interrogation techniques were unacceptable. The incident occurred at a U.S. military base nicknamed Blacksmith Hotel near Al-Qaim, Iraq.

FBI Report on Interrogation Techniques

In A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq (May 2008,, the U.S. Department of Justice's Office of the Inspector General (OIG) summarizes its findings regarding the observations and participation of Federal Bureau of Investigation (FBI) agents in detainee interrogations conducted at military facilities in Guantánamo Bay, Afghanistan, and Iraq between 2001 and 2004. The OIG reviewed relevant documents, interviewed over two hundred witnesses, and surveyed more than one thousand FBI agents as part of the investigation. The public version of the report is unclassified, but has been edited to censor certain information.

The OIG concludes that the vast majority of FBI agents complied with FBI interview policies and separated themselves from interrogators who used non-FBI techniques. The OIG acknowledges that FBI agents

witnessed interrogation techniques that caused them concern. Questions and protests made by FBI agents in the field to the interrogators sometimes resulted in friction between the FBI and the military. This was particularly true at Guantánamo Bay, where FBI agents reported serious concern about military interrogation techniques used against certain high-value detainees, including Muhammad Al-Qahtani (1979). Al-Qahtani is believed to be involved in the planning of the 9/11 attacks. FBI agents complained that during late 2002 and early 2003 Al-Qahtani was subjected to many aggressive techniques including being put on a leash and forced to do dog tricks, held in stress positions, having women's underwear put on his head, and ordered to pray to an idol shrine. The OIG found that FBI complaints to the DOD about the legality and effectiveness of these techniques were never officially addressed.

In total, more than two hundred FBI agents who served at Guantánamo reported witnessing or hearing about harsh interrogation techniques used by the military. Some of these techniques were in violation of DOD regulations effective at the time. A smaller unnamed number of FBI agents reported similar problems in Afghanistan. Over three hundred FBI agents reported observing or hearing about harsh interrogation techniques used by the military on detainees in Iraq. (See Table 9.5.) One hundred and twelve of the agents personally observed these techniques. However, the OIG notes that the vast majority of FBI agents stationed at Guantánamo Bay, Afghanistan, and Iraq reported neither observing or hearing about harsh interrogation techniques.

Redefining War Crimes?

In August 2006 Bush administration officials appeared before Congress and asked for clarification of how the Third Geneva Convention is to be applied under U.S. law to detainees. Specifically, the officials asked for a definition of what constitutes outrages upon personal dignity, in particular, humiliating and degrading treatment under Common Article 3, section (1)(c). Alberto Gonzales (1955), the U.S. attorney general, asked Congress to establish a list of offenses that would be considered war crimes under the War Crimes Act of 1996 as violations of Common Article 3.

Some observers believe the Bush administration is worried that top U.S. officials could be charged under the War Crimes Act in light of the Supreme Court decision that detainees are covered by the Geneva Conventions. In War Crimes Act Changes Would Reduce Threat of Prosecution (Washington Post, August 9, 2006), R. Jeffrey Smith notes that the Bush administration has drafted amendments to the War Crimes Act that would omit the language barring humiliating and degrading treatment.

Critics charge that President Bush and top administration officials have already committed war crimes. For example, Jeremy Brecher and Brendan Smith claim in Senate Vote Advances President's Effort to Kill War Crimes Act (The Nation, September 22, 2006) that the amendment to the War Crimes Act will be retroactive, meaning that past offenses will not be prosecutable. Brecher and Smith state that the amendment is designed solely to protect certain individuals (including the president) from charges of war crimes.

New Detainee Rules

In December 2005 Congress approved a 2006 DOD appropriations bill including an amendment outlawing the use of torture or cruel and inhuman treatment of detainees by military and civilian federal agencies. The Detainee Treatment Act of 2005 was proposed by Senator John McCain (1936; R-AZ), who was a POW during the Vietnam War (19551975). It requires that military interrogators use only interrogation techniques listed in the U.S. Army Field Manual, which adheres to the requirements of the Third Geneva Convention for the treatment of POWs.

On September 5, 2006, the DOD issued Directive 2310.01E regarding the DOD's Detainee Program. The directive concerns all detainee operations conducted by DOD personnel (military and civilian) and DOD contractors. It states that all detainees shall be treated humanely and in accordance with U.S. law, the law of war, and applicable U.S. policy. Specifically, all detainees, regardless of legal status, are entitled to the protections of Common Article 3 of the Geneva Conventions. The directive also lists additional minimum standards of treatment for all detainees.

On September 6, 2006, the U.S. Army released a new version of the U.S. Army Field Manual, known as FM 2-22.3 (FM 34-52) Human Intelligence Collector Operations http://wwwarmymil/institution/armypublicaffairs/pdf/fm2-22-3pdf). The new manual is nearly four hundred pages long and provides detailed guidance and instructions on conducting human intelligence (HUMINT) operations. Included in the fifth chapter of the manual is a section on interrogation, which notes that cruel, inhuman, and degrading treatment of detainees is prohibited. The manual states, Use of torture is not only illegal but also it is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the HUMINT collector wants to hear. Use of torture can also have many possible negative consequences at national and international levels. Specific prohibitions on the treatment of detainees are listed in Table 9.6.

TABLE 9.5 Survey of FBI agents who observed interrogation techniques in Iraq between March 2003 and December 2004
Interrogation techniquePersonally observedObservations led me to believeDetainee told meOthers described to meNone of the above
SOURCE: Table 10.1. Survey Results Concerning Interrogation Techniques Observed in Iraq, in A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay Afghanistan, and Iraq, U.S. Department of Justice, Office of the Inspector General, May 2008, (accessed August 8, 2008)
1Depriving a detainee of food or water12284
2Depriving a detainee of clothing5335273
3Depriving a detainee of sleep, or interrupting sleep by frequent cell relocations or other methods106728234
4Beating a detainee374274
5Using water to prevent breathing by a detainee or to create the sensation of drowning1287
6Using hands, rope, or anything else to choke or strangle a detainee287
7Threatening other action to cause physical pain, injury, disfigurement, or death12281
8Other treatment or action causing significant physical pain or injury, or causing disfigurement or death12287
9Placing a detainee on a hot surface or burning a detainee34281
10Using shackles or other restraints in a prolonged manner615277
11Requiring a detainee to maintain, or restraining a detainee in, a stressful or painful position6125274
12Forcing a detainee to perform demanding physical exercise114277
13Using electrical shock on a detainee12283
14Threatening to use electrical shock on a detainee289
15Intentionally delaying or denying detainee medical care289
16Hooding or blindfolding a detainee other than during transportation2231260
17Subjecting a detainee to extremely cold or hot room temperatures for extended periods1111285
18Subjecting a detainee to loud music111319252
19Subjecting a detainee to bright flashing lights or darkness6127268
20Isolating a detainee for an extended period20116257
21Using duct tape to restrain, gag, or punish a detainee11286
22Using rapid response teams and/or forced cell extractions2319275
23Using a military working dog on or near a detainee other than during detainee transportation13285
24Threatening to use military working dogs on or near a detainee21284
25Using spiders, scorpions, snakes, or other animals on or near a detainee288
26Threatening to use spiders, scorpions, snakes, or other animals on a detainee287
27Disrespectful statements, handling, or actions involving the Koran2287
28Shaving a detainee-s facial or other hair to embarrass or humiliate a detainee211285
29Placing a woman-s clothing on a detainee286
30Touching a detainee or acting toward a detainee in a sexual manner290
31Holding detainee(s) who were not officially acknowledged or registered as such by the agency detaining the person.124280
32Sending a detainee to another country for more aggressive interrogation225279
33Threatening to send a detainee to another country for detention or more aggressive interrogation62278
34Threatening to take action against a detainee-s family321283
35Other treatment or action causing severe emotional or psychological trauma to a detainee290
36Other religious or sexual harassment or humiliation of a detainee1287
37Other treatment of a detainee that in your opinion was unprofessional, unduly harsh or aggressive, coercive, abusive, or unlawful111284
Observation totals112304611710,333

Secret CIA Prisons Revealed

In CIA Holds Terror Suspects in Secret Prisons (Washington Post, November 5, 2005), Dana Priest accuses the Bush administration of operating secret overseas prisons for high-level detainees captured in the War on Terror. The prison system allegedly included facilities in several countries in eastern Europe and Thailand and was conducted with the cooperation of those governments. Priest claims that Central Intelligence Agency (CIA) interrogators were allowed to use enhanced interrogation techniques, such as waterboarding, that are prohibited by international law and the U.S. military. Waterboarding is an interrogation technique in which a prisoner is strapped to a board that is lowered into water in such a way that the prisoner believes he is going to drown.

On September 6, 2006, admitted in a speech that the CIA had been operating secret overseas prisons, but he denied that the detainees had been tortured, claiming they had been subjected to techniques that were tough, and they were safe and lawful and necessary. All the detainees were believed to have been transferred to military control.

TABLE 9.6 List of detainee treatments specifically prohibited by U.S. Army Field Manual, 2006
SOURCE: Adapted from Cruel, Inhuman or Degrading Treatment Prohibited, in FM 2-22.3 (FM 34-52) Human Intelligence Collector Operations, U.S. Army, September 6, 2006, (accessed August 11, 2008)
Section 5-74
Specifically prohibited treatments under all circumstances:
Forcing an individual to perform or simulate sexual acts or to pose in a sexual manner. Exposing an individual to outrageously lewd and sexually provocative behavior.
Intentionally damaging or destroying an individual-s religious articles.
Section 5-75
Specifically prohibited treatments during interrogations:
Forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner. Placing hoods or sacks over the head of a detainee; using duct tape over the eyes. Applying beatings, electric shock, burns, or other forms of physical pain.
Using military working dogs.
Inducing hypothermia or heat injury.
Conducting mock executions.
Depriving the detainee of necessary food, water, or medical care.

In July 2007 President Bush issued an executive order that CIA interrogations of terror suspects will be conducted in accordance with Common Article 3 of the Geneva Conventions. Later that year the director of the CIA admitted that videotapes of some detainee interrogations had been destroyed by the agency.

Amnesty International

The London-based Amnesty International (AI) is a private independent group that is concerned with protecting human rights around the world. It has been a vocal critic of U.S. policies toward detainees. In Report 2006: The State of the World's Human Rights In Report 2006: The State of the World's Human Rights (2006,¼18amp;&n3=782), the AI claims the United States is holding thousands of detainees without charge and operating secret detention facilities called black sites in various countries. The AI also accuses U.S. officials of practicing rendition (exporting U.S.-held detainees to countries known to practice torture). The AI insists that detainees at Guantánamo Bay are subjected to cruel, inhuman, or degrading treatment and that top U.S. officials may have been responsible for war crimes and crimes against humanity.

In Report 2008: The State of the World's Human Rights (2008,, the AI claims that hundreds of detainees at Guantánamo Bay were being held without charges in inhumane conditions in 2007. The AI says many of the detainees are held for up to twenty-four hours per day in windowless cells and are suffering from physical and mental health problems due to their confinement. The organization also alleges that some of the detainees have complained during their CSRT hearings of being tortured, but the allegations have been deleted from the official transcripts of the hearings.

UN Criticisms

In May 2006 U.S. officials conducted an oral presentation before the UN Committee against Torture to present the United States' second required periodic report under the UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. In United States Presents Report to U.N. Anti-torture Committee (May 5, 2006,, Vince Crawley reports the U.S. delegation claimed that relatively few actual cases of abuse had occurred, and that those cases had been addressed by authorities and did not represent widespread commission of torture by the United States in its War on Terror. U.S. officials noted that over 600 investigations had been performed into allegations of detainee abuse and over 250 Americans had been held accountable. In addition, the delegation charged that many allegations of U.S. torture of detainees were unsupported and exaggerated to the point of being absurd.

The Committee against Torture responded to the United States in Consideration of Reports Submitted by State Parties under Article 19 of the Convention (July 25, 2006). The committee acknowledged a handful of positive aspects in U.S. compliance with the convention but presented more than a dozen concerns about U.S. treatment of detainees. The major concerns relate to allegations of secret detention facilities that are not accessible to the ICRC, enforced disappearances of suspects, detainees being deprived of fundamental legal safeguards, and detainee renditions (transfers) to countries believed to practice torture. The committee also noted that holding detainees indefinitely without charging them violates the convention and recommended that the Guantánamo Bay Detention Facility be closed as soon as possible.

In United States Says U.N. Torture Report Ignored Crucial Data (May 19, 2006,, the U.S. Department of State expressed disappointment in the committee report, complaining that it contained numerous errors and failed to acknowledge important information submitted by the U.S. delegation. The United States also accused the Committee against Terror of exceeding its authority for recommending closure of the Guantánamo Bay Detention Facility.



Darren K. Carlson of the Gallup Organization reports in Public Believes U.S. Government Has Tortured Prisoners

(November 29, 2005, that in November 2005, 74% of Americans believed U.S. troops or government officials have tortured prisoners in Iraq or in other countries, whereas 20% believed torture has not taken place. Carlson notes that this poll was conducted only weeks after President Bush and Porter J. Goss (1938), the chief of the CIA, assured the American public that prisoners in the War on Terror are not being tortured.

During the same poll respondents were asked whether they are willing to have the government torture known terrorists who know details about future terrorist attacks. Carlson notes in Would Americans Fight Terrorism by Any Means Necessary? (March 1, 2005, that this same question was asked by Gallup pollsters in October 2001 (only weeks after the September 11, 2001, terrorist attacks) and in January 2005. In all three polls, a majority of respondents opposed the use of torture to obtain vital information about future attacks. In November 2005, 56% of those asked had this viewpoint, compared to 38% who were willing to use torture.

In War on Terrorism (2008,, the Gallup Organization indicates that in January 2005 people were asked about the appropriateness of using various interrogation techniques on prisoners suspected of knowing information about possible future attacks against the United States. Eighty-five percent thought it was wrong to permit female interrogators to have physical contact with Muslim men during religious observances that prohibit that kind of contact. Many people (82%) were also opposed to the use of waterboarding. Seventy-nine percent of those asked expressed disapproval for forcing naked prisoners into uncomfortable positions in cold rooms for several hours, and 69% were opposed to using dogs to threaten prisoners. There was less opposition to the idea of transporting prisoners to countries known to practice torture. Sixty-two percent of respondents felt this practice was wrong. The least objectionable of the interrogation techniques was sleep deprivation. Only 48% of respondents were opposed to depriving prisoners of sleep for several days.

The CIA and the Geneva Conventions

A Gallup poll conducted in September 2006 found that a majority of Americans (57%) believed the CIA

TABLE 9.7 Public opinion on whether the CIA should abide by the Geneva Conventions when questioning suspects about terror plots, September 2006
SOURCE: Adapted from Question qn19. When Interrogating Prisoners, Members of the U.S. Military Are Required to Abide by the Geneva Convention Standards Which Prohibit the Humiliating and Degrading Treatment of Prisoners. When the CIA or Central Intelligence Agency Questions Suspects Whom They Believe to Have Information about Possible Terror Plots against the United States, Do You Think-They Should Have to Abide by the Same Geneva Convention Standards That Apply to the U.S. Military, or They Should Be Able to Use More Forceful Interrogation Techniques Than the Geneva Convention Standards That Apply to the U.S. Military? in September Wave 1, The Gallup Organization, September 2006, (accessed August 8, 2008). Copyright © 2006 by The Gallup Organization.
Reproduced by permission of The Gallup Organization.
They should have to abide by the same Geneva Convention standards that apply to the U.S. military56.66
They should be able to use more forceful interrogation techniques than the Geneva Convention standards that apply to the U.S. military38.36
Other/depends (vol.)2.04
Don't know2.62
(vol.) = Volunteered response.

should abide by the Geneva Convention standards when questioning suspects believed to have information about possible terror plots against the United States. (See Table 9.7.) Thirty-eight percent of respondents said the CIA should be able to use more forceful interrogation techniques than those permitted by the Geneva Conventions.

Closing the Guantánamo Bay Detention Facility

In July 2007 Gallup asked poll participants their opinion about whether the United States should close the Guantánamo Bay Detention Facility. A majority (54%) of respondents said the facility should not be closed. (See Figure 9.1.) Another 33% favored closing the facility, and 13% were unsure or refused to answer.

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