U.S. Has Learned Lessons on Detainee Treatment, Panelists Say
While U.S. officials in the past have made mistakes regarding the treatment of detainees, the Department of Defense and lawmakers are taking steps to clarify procedures and ensure that the United States is transparent in its policies, said panelists at a Nov. 17 discussion at the Law School of the treatment and interrogation of detainees. The event was sponsored by the Law School's Human Rights Program, the U.S. Army JAG Legal Center and School, and the J.B. Moore Society of International Law.
"Unfortunately we had Abu Ghraib, which revealed that even despite a commitment to the law of war and despite our values, there will be people who will make mistakes and people who will intentionally violate our policies and procedures," said panelist Bryan Del Monte, Department of Defense deputy director for policy development and international issues in the Office of Detainee Affairs. "If there is a silver lining to Abu Ghraib, it sparked the Department to do what I believe is probably one of the most transparent and comprehensive reviews about how we conduct detention."
"The goal of intelligence interrogations, as stated in the Army field manual, is to obtain reliable information in a lawful manner in a minimum amount of time and to satisfy intelligence requirements of any echelon of command," said moderator Maj. Gretchen Jackson.
Maj. Gretchen Jackson, an associate professor of intelligence law at the JAG School, served as moderator of the panel. Jackson outlined the rules and procedures for intelligence interrogations based on the current Army field manual, the standard adopted throughout the Department of Defense for intelligence operations. The manual routinely references Geneva Convention principles that require humane treatment as the minimum standard, she said.
"If there is doubt as to the legality of a proposed form of interrogation not specifically authorized in this manual, the advice of the command judge advocate should be used before using the method in question," Jackson noted. "Defining 'humane treatment' is incredibly difficult, and there is no all-inclusive list in domestic or in international law that would satisfy exactly how we might define 'humane treatment.'"
Jackson explained that the manual provides some guidance to determine the legality of interrogations.
"Would a reasonable person in the place of the person being interrogated believe that his rights, as guaranteed under both international and U.S. law, are being violated or withheld or will be violated or withheld if he fails to cooperate?" Jackson read.
Furthermore, the field manual provides 14 "designated and approved approach techniques," and no others are authorized for intelligence interrogations, she said. The manual is in the process of revision and review.
"Is the Army field manual sufficient under domestic and international law, and if not, should it be changed, and how?" she asked.
According to Del Monte, 9/11 brought the United States to the painful realization that "there are dangerous groups that seek to undermine our security and global peace and stability." President George W. Bush consequently determined the "appropriate framework" with which to deal with al Qaeda is the law of war.
"Those that are detained by the United States at Guantanamo, in Afghanistan, are enemy combatants in the war on terror," Del Monte said. The United States decided "[they] are going be treated humanely, but they are not going to be prisoners of war, and this created a unique challenge, policy-wise, as to how we were going to do that."
Del Monte said detainees are provided adequate food, water, shelter, and clothing. Additionally, they are given culturally appropriate food, and their religious practices are respected.
"We go to great lengths to recognize these things. I realize that's not recorded much in the press, but it is the case," he said. "It is unprecedented to release a combatant before the conflict has ended, but we as a policy are committed to not holding anyone longer than necessary."
In the last four years, the Department of Defense has learned a lot about detention operations, Del Monte said. There have been over 12 major reviews of "every aspect of what we do, you name it, we studied it." The Department now is seeking to incorporate the lessons learned from these investigations into policy.
"Our purpose is to develop something that will be durable; durable both in terms of policy sufficiency and political durability, and secondly to develop something that will allow us the flexibility we need in facing the enemies that we face," he said.
"We are the champions of compliance with the law of war, we brag about how good our training is, but I think it probably fell down in some cases," said Charles Allen.
Panelist Charles A. Allen, the deputy general counsel for international affairs from the general counsel's office of the Department of Defense, said the United States has always paid attention to current laws regarding detention and interrogation.
"Throughout this conflict, we've been looking to applicable law — the U.S. Constitution, U.S. statutes, treaty obligations, and particularly the law of war — to frame our actions," he said.
Allen explained that Congress's Sept. 18, 2001 decision to authorize the president to use all necessary power and force, due to perceived unusual and extraordinary threat, has resulted in the removal of the Taliban, which was a primary source of support to the terrorists responsible for 9/11.
"In the conduct of these operations, the U.S. Armed Forces, consistent with the law and settled practice during armed conflict, have seized many hostile persons and detained — sometimes people forget — really only a small fraction of those we initially detained in any combat action."
Allen said Bush decided the Third Geneva Convention applies to Taliban detainees but not to al Qaeda because Afghanistan is a party to the Geneva conventions, whereas al Qaeda is not.
"[Bush] also determined that under Article 4 of that Third Geneva Convention, Taliban detainees are not entitled to POW status," Allen said. "Even so, he directed the United States Armed Forces to treat detainees humanely. This doesn't mean that just because they didn't have POW status they did not have protections under the law of war."
The status of detainees is further complicated by an inability to estimate the war's potential duration because enemy combatants can be held until the end of hostilities under the law of war. "The military's authority to capture and detain military combatants, I submit, is well established and time honored," Allen said.
Allen said the relatively new use of combatant status review tribunals, which were a response to a recent Supreme Court decision, has improved the system.
"I stand by the combatant status review tribunal process as a really superb way, far beyond any existing procedure in doctrine or practice of any nation at any time in history in armed conflict," he said.
The 558 cases brought before the tribunals, which determine whether detained persons should still be classified as enemy combatants, have resulted in 38 detainees no longer being considered enemy combatants. Of these, 28 have been returned to their home countries, and arrangements are being made for the others.
"Some of those others are people who wouldn't want to go back to their countries if they could," Allen explained. "We're trying very hard to find places that will receive them, and I'd like to submit that underscores our commitment to their humane treatment. We are not going to return them to places they might be tortured."
He said the United States does not want to keep detainees longer than necessary and cited annual administrative review board policies as one method of securing this goal. The annual reviews resulted in 179 detainee release recommendations, and 68 of these detainees have been transferred to 15 different countries.
Furthermore, Allen said the United States does not endorse the use of torture during interrogations.
"Obviously it's the policy of the U.S. to comply with all of its obligations in treatment," he said.
The problem is not with existing rules regarding detention, but with the military's adherence to those rules, suggested panelist Marc Garlasco, a senior military analyst at Human Rights Watch who previously spent seven years in the Pentagon as a senior intelligence analyst covering Iraq.
"Our perspective is that the interrogation manual actually is a pretty good document," he said. "As it stands, it's practical. Beyond being just a legal document it gives some guidelinesâ¦ and we certainly appreciate the explicit prohibition against the use of force. As [with] all legal documents, we recognize it does evolve, however."
He said he appreciates that lawyers currently are working on its evolution but finds some recent policy decisions problematic.
"The question is, 'Do we need a statute?'" he said. "We believe the manual, whether it's this one or the new and revised one, provides solid rules and guidelines, but we have seen a failure to assure that the U.S. abides by its legal obligations, as far as the slippery slope towards torture has gone."
Garlasco said Human Rights Watch also is concerned by the lack of accountability for violations of Army guidelines.
"A slap on the wrists is something that most of the troops are getting," he said. According to Garlasco, of the 86 reported detainee deaths, many have been homicides, yet there have been no homicide trials
"I think the problem really comes down to leadership and training," he said.
The conditions under which prisoners are held at Guantanamo "I don't think would approximate inhumane treatment," said Scott Stucky.
Panelist Scott Stucky, general counsel for the Senate Armed Services Committee, noted that Sen. John McCain's amendments to address ongoing problems with the detention of enemy combatants and other prisoners were introduced in an unusual fashion.
The amendments were included in both the defense authorization bill, which was passed by the Senate 90-9, and the appropriation bill the Senate passed earlier this month that is now in the House of Representatives.
"Authorization bills are the repositories for substantive legislation," Stucky said. "[Appropriations] bills are places where you divvy up money. Authorization bills authorize expenditures; [appropriations] bills actually give you the money."
"[McCain's amendments] are one: uniform standards for interrogation; and two: a prohibition on torture and cruelty and inhumane treatment," he said, clarifying that the first part only applies to the Department of Defense, while the second part applies to all U.S. officials.
According to Stucky, it is unusual to include policy issues in statutory drafting.
"You don't incorporate something that can be administratively changed," he said. "It's a curious way to get into a statutory prohibition."
Another amendment included in the authorization bill, although not included in the appropriations bill, is part of a proposal by Sen. Lindsey Graham of South Carolina. Graham's amendment includes habeas corpus review of detainee positions. "It substitutes for habeas review a limited form of direct review in the U.S. Court of Appeals for the D.C. Circuit," Stucky said.
Under the Graham amendment, a similar sort of review also would be used for final decisions on military commissions. The Graham compromise passed 84-14 in the Senate.
The amendments "ought to be considered in the authorization conference because that's where they belong," he said.
During a question and answer session following the panelists' remarks, an audience member asked whether incidents involving accusations of torture were related to confusion among troops.
"We are the champions of compliance with the law of war, we brag about how good our training is, but I think it probably fell down in some cases," Allen said. "I think the worst behavior has occurred because criminals have committed criminal actsâ¦in other words, there are some bad people out there."