Blog
Published on September 8, 2006
On Wednesday President Bush delivered an important speech outlining the administration’s plan for the detention, interrogation and prosecution of security detainees, including terrorist suspects.
In his speech the President: proposed new rules for military commissions; announced – and asserted the authority to continue – a program of secret CIA prisons where undisclosed interrogation techniques were used; urged Congress to redefine the Geneva Conventions’ requirement that all prisoners be treated humanely and to limit the legal enforceability of this requirement; and announced the promulgation of a new Army Field Manual on Interrogations.
The speech contained a number of critical inaccuracies and troubling assertions. The following is Human Rights First’s assessment of what he said.
Secret Detentions
What the President said:
“Many are al Qaeda operatives or Taliban fighters trying to conceal their identities, and they withhold information… In these cases, it has been necessary to move these individuals to an environment where they can be held secretly, questioned by experts, and – when appropriate – prosecuted for terrorist acts.”
Human Rights First’s response:
Holding a prisoner in secret, incommunicado detention is illegal – under all circumstances. At a minimum, a prisoner held during an armed conflict should be visited by the International Committee of the Red Cross, so treatment can be monitored and so family members can be notified of the detention. Our experience in many countries over more than 25 years is that secret detentions invite abuse and mistreatment.
Indeed, in the past decade the United States has criticized many countries such as Iran, Iraq (under Saddam Hussein), Syria, Sri Lanka, North Korea, and Sudan for precisely this practice. By defending secret detentions, the President now effectively invites other countries to do the same, including when it comes to capture and detention of U.S. soldiers.
While the President announced publicly that he has transferred 14 high profile detainees into military custody, he also said that the CIA should have authority to hold captives in secret and subject them to secret “alternative” interrogation techniques. This is illegal. Holding prisoners in secret and subjecting them to coercive interrogation also may make it more difficult to prosecute these individuals in the future. The President has stated that America is a nation of law, but his continued endorsement of secret detentions and interrogations is inconsistent with that notion.
Coercive interrogations by the CIA
What the President said:
“[T]he CIA used an alternative set of [interrogation] procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful…I can say the procedures were tough, and they were safe, and lawful, and necessary.”
Human Rights First’s response:
The President’s assertion that the interrogation techniques approved for use by the CIA “comply with our laws” is wrong. Quite to the contrary – these techniques violate U.S. law, including U.S. treaty obligations. This “alternative set of [interrogation] procedures” reportedly included waterboarding (submersion in water to simulate drowning), forcing individuals to remain in stress positions for prolonged periods of time, and forced nudity. Over the past five years, senior US Government officials have authorized these and other specific interrogation techniques. But authorizing these practices does not make them legal.
On the same day as the President made his speech the Army’s deputy chief of staff for intelligence, Lt. Gen. John F. Kimmons, announced the Army’s rejection of coercive interrogation techniques in its revised Field Manual on Interrogations. Lt. Gen. Kimmons stated categorically that “[n]o good intelligence is going to come from abusive practices.” Indeed, many interrogators have agreed with Lt. Gen. Kimmons in dismissing the effectiveness of abusive techniques. In their experience, such techniques lead to unreliable intelligence and serve to undermine support for the United States’ efforts with populations whose cooperation and expertise are needed.
One striking example of the effect of unreliable information is the case of Ibn al-Shaykh al-Libi. In 2002, he was interrogated by the CIA, who turned him over to Egyptian agents for harsh interrogation. Under that interrogation, he gave detailed information describing ties between al Qaeda and Saddam Hussein, which the administration then relied on to make the case for initiating the war in Iraq. Al-Libi recanted after he was returned to U.S. custody, and the U.S. intelligence community recommended that information obtained from al-Libi be regarded as highly suspect.
Distinguishing Torture from other forms Cruel Inhuman or Degrading Treatment
What the President said:
“I want to be absolutely clear with our people, and the world: The United States does not torture. It’s against our laws, and it’s against our values. I have not authorized it – and I will not authorize it. Last year, my administration worked with Senator John McCain, and I signed into law the Detainee Treatment Act, which established the legal standard for treatment of detainees wherever they are held. I support this act.”
Human Rights First’s response:
For the last five years the President and other administration officials have repeatedly declared that the U.S. is not torturing people. In so doing they draw a distinction between torture, which they say they have not authorized, and other forms of cruel inhuman or degrading treatment which they have authorized – and when used in combination can clearly constitute torture. The Administration argues, incorrectly, that these other forms of abusive interrogations are not prohibited by U.S. or international law. Last year Congress adopted the McCain amendment precisely to address this specious distinction and to make clear that no U.S. official is allowed to engage in any form of cruel, inhuman or degrading treatment – anywhere or against anyone. The President’s assertion of compliance with the plain meaning of the McCain Amendment standard flies in the face of the CIA’s record in applying the “alternative set of procedures” which the President said the CIA will still be permitted to utilize.
Application of Common Article 3 of the Geneva Conventions
What the President said:
“[T]he Supreme Court’s recent decision has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. In its ruling on military commissions, the Court determined that a provision of the Geneva Conventions known as “Common Article Three” applies to our war with al Qaeda. This article includes provisions that prohibit “outrages upon personal dignity” and “humiliating and degrading treatment.” The problem is that these and other provisions of Common Article Three are vague and undefined, and each could be interpreted in different ways by American or foreign judges.”
Human Rights First’s response:
The Supreme Court’s ruling in Hamdan v. Rumseld simply held that the Executive Branch is bound by the law, and that the rules of the military commissions they created in October 2001 failed to meet standard. As part of its decision the Court reaffirmed that Common Article 3 of the Geneva Conventions, which requires humane treatment, applies to those in U.S. detention.
It is baffling that the President continues to assert that the language of Common Article 3 “has impaired our ability to prosecute terrorists” or that it has “put into question the future of the CIA program.” Common Article 3 simply requires humane treatment of all detainees, a standard completely consistent with U.S. law and tradition. It embodies who we are as a country. To suggest, as the President has done, that it should not be applied because its prohibition of “ humiliating and degrading treatment” is “vague and undefined” is absurd.
The assertion that deviations from humane treatment are necessary to intelligence gathering efforts is wrong. A wide range of military leaders have confirmed this. Most recently, Lt. Gen. John F. Kimmons, the Army’s deputy chief of staff for intelligence, stated that “all of [our most significant successes on the battlefield], almost categorically all of them, have accrued from expert interrogators using mixtures of authorized humane interrogation practices in clever ways…We don’t need abusive practices in there. Nothing good will come from them.”
To suggest, as the President has done, that Common Article 3 should not be applied or should be redefined because its prohibition of “humiliating and degrading treatment” is “vague and undefined” is also wrong. The Army’s own Field Manual provides a common sense definition that is not vague at all: the U.S. government should not use any technique on an enemy prisoner that Americans would not want to see used on a captured U.S. solider. The nation’s top uniformed military lawyers have all testified repeatedly that Common Article 3 is part of the military doctrine and that the military trains to that standard. If the President thinks the terms of Common Article 3 are vague, he should ask the experts on the laws of war – our nation’s top military lawyers.
If these publicly delineated standards and techniques are effective for the military, the Administration has failed to make the case for why the CIA or other government agencies need to operate by different rules or standards.
Accountability for Violating the Article 3
What the President said:
“The problem is that … provisions of Common Article Three [that prohibit humiliating and degrading treatment] are vague and undefined, and each could be interpreted in different ways by American or foreign judges. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act – simply for doing their jobs in a thorough and professional way.
This is unacceptable. Our military and intelligence personnel go face to face with the world’s most dangerous men every day. They have risked their lives to capture some of the most brutal terrorists on Earth. And they have worked day and night to find out what the terrorists know so we can stop new attacks. America owes our brave men and women some things in return. We owe them their thanks for saving lives and keeping America safe. And we owe them clear rules, so they can continue to do their jobs and protect our people.”
Human Rights First’s response:
We agree wholeheartedly on the need for clear rules governing interrogations. This is what the military has done in the revised Army Field Manual, and this is what the CIA must do for its personnel. It is not enough for the President to say that he “cannot describe the specific [interrogation] methods used – I think you understand why.” Those methods need to be reviewed and analyzed beyond the Executive Branch, in part to determine whether they comply with the law. Once those rules are in place, they need to be followed by every U.S. official. And those who violate these laws must be subjected to strict discipline and, where appropriate, criminal prosecution.
One reason the President wants to “clarify” the rules now is to remedy the injustice that has been done to U.S. intelligence professionals who relied on assurances by senior government officials that the laws of war do not apply to our fight with al Qaeda. Based on those assurances, some of these intelligence officials took actions which violated the law, as the Supreme Court has now confirmed. But now the President wants to redefine what is meant by Common Article 3, so that the same abusive techniques that were authorized before can continue.
Military Commissions
What the President said:
“So today, I’m sending Congress legislation to specifically authorize the creation of military commissions to try terrorists for war crimes. My administration has been working with members of both parties in the House and Senate on this legislation. We put forward a bill that ensures these commissions are established in a way that protects our national security, and ensures a full and fair trial for those accused.”
Human Rights First’s response:
We welcome and share the administration’s stated commitment to establishing military commissions that both “protect national security and ensure a full and fair trial for those accused.” Unfortunately, the proposal the administration now puts forward fails this test. Specifically the administration’s proposal allows the government to present evidence obtained in coercive interrogations, including those that involved cruel, inhuman and degrading treatment. Admission of such evidence has been consistently criticized by senior active duty and retired military lawyers.
Among other flaws, the proposal allows convictions based on evidence which the accused is not allowed to see – a practice that was specifically mentioned by the Supreme Court as being in violation of the Geneva Conventions.
Fortunately a bi-partisan coalition of Members of Congress have already expressed their opposition to the Administration’s proposal. As Senator Lindsey Graham said, “I do not think we can afford to again cut legal corners that will result in federal court rejection of [military commissions].”
