International Law V Torture in

International Law v Torture in Post-War Iraq and U.S.' Liability International and U.S. Law Against Torture and Other Ill-treatment International and U.S. law expressly forbids torture and other forms of ill-treatment of any person in custody and in all circumstances (Human Rights Watch 2004). This law is applies to the United States' territory and anywhere else it has control. It is operational in times of peace as well as of armed conflict or a state of emergency.

It protects any person, whether a citizen or a non-citizen, a prison-of-war, a "protected person," a "security detainee," or an "unlawful combatant." The law against torture and ill-treatment is, thus, absolute and this is set forth by the International Humanitarian and the Geneva Conventions, the Human Rights Law and the U.S. Law itself. These are international obligations, which bind the United States officials, military personnel and others involved in torture and other forms of mistreatment of persons in U.S. military and intelligence detention facilities (Human Rights Watch).

International Humanitarian Law: the Geneva Conventions The First Geneva Convention in 1864 was for the amelioration of the condition of the wounded and sick in the Armed Forces in the Field (Human Rights Watch 2004). The Second Geneva Convention in 1906 was for the amelioration of the wounded, sick and shipwrecked members of the Armed Forces at sea. The Third Geneva Convention in 1929 relates to the treatment of prisoners of war. These first three conventions were revised and expanded in 1949.

The Fourth Geneva Convention in 1949 was for the protection of civilian persons in time of war. All four later came to be referred as the Geneva Conventions of 1949 or simply the "Geneva Convention." Modifications to these conventions were later made in the form of three amendment protocols. The first in 1977 relates to the protection of victims of international armed conflicts. The second, also in 1977, relates to the protection to victims of non-international armed conflicts. And the third, in 2005, relates to the adoption of an additional distinctive emblem for medical services.

The United States ratified these four in 1955 (Human Rights Watch). Geneva III article 13 and Geneva IV article 27 mandate that "detainees must at all times be humanely treated (Human Rights Watch 2004). They allow interrogation but forbid all forms of "physical or mental coercion. Rape or any indecent assault on women, torture or inhuman treatment of prisoners-of-war and protected persons are serious breaches of the Conventions. They are considered war crimes. War crimes obligate the State to prosecute the suspect or to turn him over to another State for prosecution.

The obligation remains regardless of the suspect's nationality or that of the victim or the place where the inhuman treatment is committed. The common article 3 of the Conventions forbids violence and murder of all kinds and expresses outrage for humiliating and degrading treatment. The fundamental guarantees of Article 75 of Protocol I of 1977 extend protection to some detainees from third countries. This Article forbids murder, torture of all kinds, corporal punishment, "outrages upon personal dignity," and any form or indecent assault (Human Rights Watch).

Human Rights Law This prohibition covers the mistreatment of persons in custody in all circumstances during war or peace time (Human Rights Watch 2004). Among the applicable treaties are the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Universal Declaration of Human Rights and the UN Standard Minimum Rules for the Treatment of Prisoners.

Moreover, it has become a fundamental principle of international law as its "preemptory norm." As the preemptory norm, it preempts all other customary laws. All States become bound to recognize and respect it whether they sign treaties, which contain it. Moreover, they are obliged to prevent and punish acts of torture even if they have not entered into treaties, which specifically require it (Human Rights Watch). US Law The United States itself incorporated these international prohibitions against torture into its own domestic law (Human Rights Watch 2004).

It agrees and reported to the Committee against Torture that torture, as understood by the Convention is illegal under existing federal and state law and that anyone who is proven to have committed it shall be penalized according to criminal statutes. It cannot be justified by so-called "exceptional circumstances" or from orders of a superior officer. Military persons who torture or mistreat prisoners, therefore, can be prosecuted by a court-martial according to the Uniform Code of Military Justice. Under the War Crimes Act of 1996 (18 U.S.C. § 2441), U.S.

military personnel and nationals who commit these crimes can be held liable for a criminal offense under the 1949 Geneva Conventions. These war crimes include violations of the common Article 3 of the Convention, which span all "violence to life and person." It specifically addresses murder of all kinds, mutilation, cruel treatment and torture. A 1994 federal statute (18 U.S.C. § 2340A) prosecutes and penalizes a U.S. national -- or anyone while in the U.S. -- who commits or attempts to commit torture.

The violator can be punished with imprisonment of up to 20 years or with the death penalty if the victim dies as a result of the torture. The Military Extraterritorial Jurisdiction Act of 2000 (Public Law 106-776), also known as MEJA, punishes civilian companions or employees of U.S. forces with imprisonment who commit the same offense. Crimes generally cover all federal criminal offenses punishable by imprisonment for more than a year. This last law, however, has still to be tested when the Defense Department issues the required implementing regulations.

Torture refers to infliction of severe physical or mental pain or suffering by law enforcers on another person in custody or physical control. Pain and suffering due to lawful sanctions are excluded (Human Rights Watch). The Military Commissions Act of 2006 Background This Act was the consequence of the U.S. Supreme Court's June 2006 decision in Hamdan v Rumsfeld against the creation of military commissions by executive fiat (Center for Constitutional Rights 2006). It held that protection extended by Common Article 3 of the Geneva Conventions applies in the case of Al Qaeda.

Apprehensions about potential liability for CIA interrogators for violating the Detainee Treatment Act, which prohibits torture and coercive interrogations, were also believed to have prompted the creation of this Act. It was passed by the House and the Senate. Five proposed amendments to eliminate the Act's jurisdiction-stripping provision failed. Former President George W. Bush signed the Act into law on October 17, 2006 (Center for Constitutional Rights). This legislation, S 3930, authorizes the President to organize military commissions to try alien unlawful enemy combatants (U.S. Congress 2006).

It also authorizes the Secretary of Defense to convene the commissions and, with the Attorney-General, set up rules and procedures for the commissions. It likewise revises the War Crimes to amend the Habeas Corpus provisions of the United States Code (U.S. Congress). S 3930 defines an "unlawful enemy combatant" as a person engaged in hostilities against the United States or who supports such hostilities against the U.S. Or its allies purposely and materially (U.S. Congress 2006).

He is a person whom the Combatant Status Review Tribunal as an unlawful enemy. It presumes that this person is part of the Taliban, al Qaeda or their allies. It declares that the trial procedures of general courts as not binding on military commissions. These procedures are applicable only when the Secretary of Defense so determines. Article 47 forbids the use of this bill in any court-martial proceedings. Its Common Article 3 states that military commissions will provide the necessary "judicial guarantees" required by civilized people and Article 3 of the Geneva Conventions.

S 3930 prohibits an alien enemy unlawful combatant from invoking the Conventions when on trial by a military commission. It declares the jurisdiction of military commissions in trying offenses punishable by Articles 904 and 906 of the Uniform Code of Military Justice, the law of war, before, on and after September 11, 2001. A commission consists of five members, a military judge, a trial counsel and defense counsel, court reporters and interpreters to be selected by the Secretary of Defense (U.S. Congress).

Pre-Trial and Trial Procedures At pre-trial, the charges are filed before a commissioned officer of the armed forces and promptly disseminated to the accused and his counsel (U.S. Congress 2006). They are given sufficient time to prepare for a defense. The bill protects the accused from self-incrimination or from testifying against himself. Statements taken before the enactment of the Defense Treatment Act in December 2005 are admissible if the military judges them reliable and sufficient and they serve the interests of justice.

These statements obtained by interrogation methods otherwise violate the cruel, unusual or inhumane treatment protection provided by the U.S. Constitution. S 3930 permits their use if they were obtained before December 30, 2005 (U.S. Congress). The bill requires the Secretary of Defense to apply the general-courts martial procedures when he deems them practicable (U.S. Congress 2006).

Under a military commission's procedures and rules of evidence, the accused may present evidence, cross examine witnesses against him, and respond to evidence presented against him; attend all the sessions of the trial; and have the rights to counsel and self-representation. The bill does not grant him the right to see all the evidence against him to establish his guilt or innocence. It authorizes the Secretary to determine what kind of evidence is admissible, including that obtained without warrant within or without the United States.

It forbids the disclosure of classified information if deemed detrimental to national security. It authorizes a conviction if the accused enters a plea of guilt or with two-thirds concurrence of the commission members present. The Secretary determines the sentence to be imposed, all post-trial procedures and trial review (U.S. Congress). Analysis of the Bill S 3930 broadly defines "unlawful enemy combatant [Section 3 (a) (1) amending § 948(a)(1)]. It greatly limits the range of judicial review for non-citizens kept in U.S.

custody and effectively sanctioning indefinite detention and abusive interrogations of non-citizens while limiting accountability [Sec. 71]. It does these by eliminating habeas corpus and post-release obstacles. Military commissions do not satisfy fundamental due process requirements. Their procedures deviate substantially from criminal trials in civilian courts, courts-martial under military law, and international and criminal trials. It reduces the scope of the War Crimes Act, which is the U.S. mechanism for the criminal prosecution of war crimes [Sec. 6].

It also reduces the definitions of rape and sexual assault or abuse as a crime tri-able by a military commission or punishable under the War Crimes Act. It grants retroactive immunity on some U.S. officials who engage in illegal activities, authorized by the executive [Sec. 6 (b) (2); Sec. 7; Sec. 8]. And it limits the applicability of international law in U.S. courts [Sec. 3(a)(1), amending § 948b (f), 948b (g). Article 49 of the Fourth Geneva Convention This article protects civilians during war (Goldsmith 2004).

It also forbids individual And mass forcible transfers and deportations of protected persons from occupied territory to that of the occupying power, regardless of the motive. But the Occupying Power may conduct total or partial evacuation if security of the population or some military reasons demands. Protected persons shall not be displaced outside the occupied territory unless material reasons compel it. These persons shall be sent back home as soon as the hostilities in the area cease. The Occupying Power shall assure proper accommodation for protected persons.

It shall ensure that the transfers are undertaken in conditions conducive to the person's health, safety and nutrition. The members of the family should not be separated. Transfers and evacuations shall be promptly transmitted to the Protecting Power. The Occupying Power shall not detain protected persons in places where they may be exposed to the perils of war, unless warranted by the security of the population or justifiable military reason. And the Occupying Power shall not move parts of its own civilian population into the territory it occupies (Goldsmith).

The Global Stand against Torture Article 5 of the 1948 Universal Declaration of Human Rights and other international and regional human rights treaties prohibit torture (Foley 2009). Most countries have entered into treaties, which prohibit torture and other forms of mistreatment. Among these are the 1966 International Covenant on Civil and Political Rights, the 1950 European Convention on Human Rights, the 1978 American Convention on Human Rights, and the 1981 African Charter on Human and People's Rights.

Those, which address the combating of torture in particular are the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the 1987 European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment; and the 1985 Inter-American Convention to Prevent and Punish Torture. Their common prohibition of torture and ill-treatment draws from its status in human rights law. Nothing can put it aside or limit this restriction.

States may not place individuals at risk of torture or ill-treatment, such as through extremely long and incommunicado detention or depriving a detainee prompt access to court. Whatever the status of the suspect, this prohibition operates and stands (Foley). These agreements constrain State officials from applying or tolerating torture or other inhuman treatment on any person (Foley 2009). An order from a superior may not justify torture. States must make sure that all acts of torture are treated as criminal offenses, investigate them and make their perpetrators account for their acts.

The torture or other ill-treatment of any person who is in the power of another country or party is banned as a war crime under the humanitarian laws of armed conflict. Common Article 3 of the Geneva Conventions and other provisions of all four Conventions and the protocols convey this prohibition. Torture is likewise considered a crime against humanity when performed as part of a strategy against civilians. Article 7 of the Rome Statute of the International Criminal Court places torture and rape within its jurisdiction (Foley).

The United Nations Convention against Torture From its adoption in 1984, it had 130 participants by August 2002 (Foley 2009). They are to perform universal jurisdiction, whereby they take suspected perpetrators of torture into custody, inquire into the allegations and submit the suspects to the prosecuting authority. States must likewise cooperate among themselves in bringing torturers to justice. Statements taken with torture as a means may not be used or invoked in evidence against the victim, who keeps the right to redress and adequate compensation.

States are also obliged to take efficient steps in combating torture. They must acquaint their law enforcers and medical teams and other persons involved in the custody, interrogation or treatment of detainees about the prohibition of torture and ill-treatment. They must actively investigate acts of torture and ill-treatment even without formal complaints about these. Individuals must know about their right to complain about such acts and demand investigation and protection from intimidation and ill-treatment.

Other cruel, inhuman or degrading acts or treatment or punishment fall within the purview of these prohibition even if they do not constitute or amount to torture (Foley). Boumediene v Bush Landmark Ruling The first habeas corpus case for detainees held at Guantanamo Bay was brought to a federal court in February 2002 (CRC 2008). The Bush administration was at first successful in arguing that the detainees did not have lawful access to federal courts regarding their detention. Two years later, in Rasul v Bush, 03-334-542 U.S.

466, the Supreme Court allowed the detainees' habeas cases to move on under federal statue. Congress counteracted by passing the Detainee Treatment Act in 2005 and the Military Commissions Act in 2006. These removed habeas jurisdiction from "enemy combatants" held in U.S. custody and replaced it with a very limited review by the Court of Appeals for the District of Columbia.

It was the only recourse opened to those who would challenge the classification of "enemy combatants." Those who challenged argued that the Columbia Status Review Tribunals at Guantanamo was incapable of correcting the host of violations (CCR). But in Boumediene v Bush, 554 U.S. _; 128 S. Ct. 229, 2008 WL 2369626;200 U.S. LEXIS 4867, the Supreme Court ruled as unconstitutional the Military Commissions' blocking federal courts from hearing the claims of Guantanamo detainees (Supreme Court of the United States 2008).

It decided that the petitioner-detainees had the constitutional privilege of habeas corpus and were not barred from seeking it or invoking the Suspension Clause's protection for being designated as enemy combatants or present at Guantanamo, pp 8-41. The Tribunal also found the DTA's procedures were inadequate and ineffective substitute for the writ, making its suspension by the writ unconstitutional, pp 42-64. In addition, it did not find prudential barriers to habeas review, pp 64-70. (Supreme Court of the United States).

The decision focused on the fundamental principle underlying the writ of habeas corpus, which allows the courts to check the abuses of executive power, pp 8-15 (Supreme Court of the United States 2008). It was the intention of the colonial founders as "a fundamental precept of liberty." Central to its protection is the court's duty and authority to call the jailer to account for the denial of that protection, pp 8-15. It emphasized on the separation of powers among the three branches of government as basis for its opinion and decision.

It strongly criticized the President's and Congress' declaration that the U.S. Constitution did not apply to Guantanamo because it is outside the U.S. sovereign territory. The Suspension Clause applies to Guantanamo non-citizen prisoners determined as "enemy combatants" in an unfair proceeding; the exclusive control of the U.S. over Guantanamo; and the lack of credible arguments that habeas proceedings would obstruct military missions in Guantanamo. Individuals in Guantanamo had the right to challenge their detention under the Suspension Clause.

This ruling may apply to similar cases at U.S. detention facilities anywhere else in the world (Supreme Court of the United States). As regards the DTA capabilities, the Court found its statutes as unable to provide release from custody as a remedy (Supreme Court of the United States 2008). It had no procedures by which petitioners could present evidence and other legal challenges afforded by a habeas proceeding.

The verdict discussed the lengthy imprisonment of the detainees without trial with emphasis and described it as "exceptional." The Court noted the gravity of the separation-of-powers issues involved and the length of time the detainees were denied meaningful access. It skipped the need for the Court of Appeals to rule on the lawfulness of the DTA by delivering a final judgment on it. It stated that the detainees were entitled to prompt habeas corpus hearing and could no longer bear the cost of delay (Supreme Court of the United States).

Hamdan v Rumsfeld, et al. Salim Ahmed Hamdan was the former chauffer of Osama Bin Laden who was captured by Afghani forces and then imprisoned in Guantanamo Bay by the U.S. military (Legal Information Institute 2006). He petitioned for a writ of habeas corpus in a federal district court. Before the district court heard his petition, a military tribunal tried and designated him as an enemy combatant.

The district court afterwards granted his habeas petition but that he had to be heard to determine if he was a prisoner under the Geneva Convention before a trial by a military commission. The Circuit Court of Appeals for the District of Columbia, however, reversed the district court's decision. Instead, it decided that the Geneva Convention did not apply in federal courts and that Congress had created and authorized military tribunals in their place. The Circuit Court of Appeals concluded that the tribunals were not un-constitutional (Legal Information Institute).

On June 29, 2006, the Supreme Court reversed the verdict, Hamdan v Rumsfeld et al., 548 U.S. 557, 126 S. Ct. 2749, 165 L. Ed. 2d 723, 2006 U.S. LEXIS 5185, 19 Fla. L. Weekly Fed. S. 452. It held that neither an act of Congress nor inherent Executive powers, as laid out in the Constitution, expressly authorized the creation and operation of military commissions, pp 7-20 and 25-30. Without that express authorization, the military commissions must comply with the ordinary laws of the United States and the laws of war.

The Geneva Convention as part of ordinary law and the statutory Uniform Code of Military Justice may be used by the Supreme Court. The High Tribunal concluded that Hamdan's exclusion from certain parts of his trial deemed by the military commission as violating both and the trial was illegal, pp 52-62, Hamdan v Rumsfeld et al., 165 L. Ed. 2d 723 (Fla 2006). The Supreme Court also concluded that the government did not charge Hamdan with an offense that can be tried by military commission, Hamdan v Rumsfeld et al., 165 L.

Ed 2d 723 (Fla 2006). He was therefore not alleged to have committed any overt act on or after September 11, 2001. Conspiracy is not a recognized violation of the law of war by international sources. Because a charge of conspiracy did not come under the commission's jurisdiction, it did not have the authority to try Hamdan, pp 30-49, Hamdan v Rumsfeld et al., 165 L. Ed. 2d 723 (Fla 2006). International Humanitarian Law and Terrorism International humanitarian law, or the law of armed conflict, recognizes the two categories of armed conflict, namely, international and non-international (ICRC 2005).

Armed conflict is international if one State uses armed force against another. It is non-international if between the government's armed forces and organized armed groups or between armed groups within the State. The "global war on terror" must first come under either category for international humanitarian law to apply. Hostilities in Afghanistan in October 2001 and in Iraq in March 2003 are examples. Humanitarian law does not come in when armed violence is contemplated outside the legal purview of an armed conflict.

Similarly, it does not apply when a person is suspected of terrorist activities and detained not in connection of an armed conflict. In these cases, domestic laws, international criminal law and human rights take over. Determining whether an international or non-international armed conflict is part of the "global war on terror" is a political, not a legal matter (ICRC).

Combatant and Enemy Combatant International humanitarian law allows the armed forces of a State to engage in armed conflict as long as they fulfill the required criteria for direct engagement in hostilities (ICRC 2005). They are called combatants and they are generally considered lawful or privileged. They cannot be prosecuted for participating in hostilities as long as they observe and respect international law. When captured, they assume prisoner-of-war status. Civilians who directly engage in hostilities are considered unlawful and unprivileged combatants or belligerents.

They may be prosecuted by the domestic law of the detaining State. Both lawful and unlawful combatants may be interned during war, interrogated or prosecuted for war crimes. But both are entitled to humane treatment by the enemy (ICRC). On the other hand, an enemy combatant is a lawful or unlawful person who engages in armed conflict for the opponent in an international armed conflict (ICRC 2005).

To those who are involved in the "global war against terror," enemy combatants are those who belong to or are associated with terrorist groups, regardless of how they are captured. Non-international armed conflict does not provide for combatant and prisoner-of-war status. States will not grant immunity from prosecution to armed opponents. The concepts of combatant and enemy combatant are outside the perspective of international human law.

Persons considered enemy combatants and captured in international or non-international armed conflict remain entitled to the provisions and protection of international humanitarian law, regardless of how they are called. In the same way, those captured outside armed conflict are governed by domestic law and human rights law, however they are called (ICRC). Prisoners-of-War in International Armed Conflict Those involved are lawful combatants from two or more States (ICRC 2005). All four Geneva Conventions apply to international armed conflicts.

The third Convention regulates the protection provision of lawful combatants when captured by the enemy. A competent tribunal follows established procedures in determining who are entitled to a prisoner-of-war status in case of doubt. Unlawful combatants do not qualify. They do not fulfill the nationality criteria covered by the Fourth Civilian Geneva Convention and the relevant provisions of the Additional Protocol I. They may be prosecuted under domestic law for their direct participation in hostilities. They may be interned as long as they are a serious security threat.

According to the Fourth Geneva Convention, they may be denied certain privileges while in detention. They may also be tried for war crimes and other crimes, which carry sentences in the same duration of the conflict and include the penalties imposed by domestic law. Meanwhile, those not covered by the Third or Fourth Geneva Convention in international armed conflict will receive fundamental guarantees by customary international law and applicable domestic and human rights law.

They assure the rights of detainees to fair and humane treatment and conditions and the due process of law. The foregoing should clarify ICRC's policy that not all persons who participate in hostilities are entitled to a prisoner-of-war status (ICRC). in Non-International Armed Conflict The combatant status is non-existent in this category of conflict (ICRC 2005). Neither does the prisoner-of-war nor civilian protected status exist under the Third and Fourth Geneva Conventions.

Organized armed groups are not entitled to special status and may even be prosecuted under domestic law for participating in hostilities. However, the rights of detainees to humane treatment and conditions and due process of law are guaranteed by the international humanitarian law of non-international armed conflict. This spans Common Article 3 of the Geneva Conventions, Additional Protocol II, customary international humanitarian law and applicable domestic and international human rights law (ICRC).

Terrorists and Soldiers A major achievement of Additional Protocol I is the limiting of methods and means of warfare in better protecting civilians (ICRC 2005). It prohibits acts of terrorism or threats of violence for the purpose of spreading terror among civilians. These persons are liable for criminal prosecution. It does not grant prisoner-of-war status to those who unlawfully participate in hostilities. This status is reserved for the armed forces of States legally engaged in international armed conflict.

These are organized and responsible armed forces, which subject themselves to an internal disciplinary system. This disciplinary system, in turn, enforces compliance to humanitarian law. At the same time, they must be distinguishable from the population to merit a prisoner-of-war status, such as by openly carrying arms. In summary, the Protocol recognizes and protects only organizations and individuals who act on behalf of a State or are subjects to international law. It excludes private wars.

Terrorist groups, which act on their own and without the required and visible link to a State or legitimate entity, will not be given prisoner-of-war protections (ICRC). Justifications by the U.S. Government Constitutional The U.S. government felt bound to the obligation to prevent "cruel, inhuman or degrading treatment or punishment (Human Rights Watch 2004)." It also perceived the concept of such treatment as coming under the prohibitions of the 5th, 8th and 14th Amendments to the U.S. Constitution.

It also said that mental pain or suffering refers only to prolonged mental harm from four sources or causes. These were the intentional infliction or threatened infliction of severe physical pain or suffering; the use or threat of mind-altering substances; the threat of imminent death; and the subjection of another person to the above mistreatment (Human Rights Watch). Redefining and Justifying Torture In its August 2002 to the White House, the Justice Department, through Attorney- General Jay S.

Bybee, expressed the opinion that torturing al-Qaeda captives abroad may be justified in the war against terrorism (Priest & Smith 2004). International laws against torture may, thus, be "unconstitutional" if applied to interrogations involved in former President Bush's war against terrorism. Tortures would be done to prevent further attacks on the United States by the Al Qaeda terrorist network. The Department prepared the memo in response to the request by the Central Intelligence Agency for legal guidance.

The memo's central argument was the necessity of torture and self-defense, which should protect the government from criminal liability (Priest and Smith). Before September 11, 2001, U.S. government personnel were not allowed to torture captives (Priest & Smith 2004). But after the CIA began detaining and interrogating A Qaeda suspects in Afghanistan and in other places, this memo came in. The argument was used by Pentagon lawyers in their March 2003 report on interrogation rules in Guantanamo Bay in Cuba. Defense Secretary Donald H.

Rumsfeld asked the lawyers to assess the logistical, policy and legal issues pertaining to their interrogation techniques. The Bush administration straightway claimed that it had conformed to the prohibition of the international conventions against torture. It said that detainees in Guantanamo and in other places were treated humanely, except at the Abu Ghraib prison in Iraq where seven military police soldiers were charged.

That memo and a succeeding one in 2003 appeared to explore how far the administration could legally go with its interrogating techniques with suspects who could own information about future attacks (Priest & Smith). The 50-page 2002 memo gave torture a much narrower definition (Priest & Smith 2004). Its view of torture was something "equivalent in intensity to the pain," which accompanies "serious physical injury, such as organ failure, impairment of body function or death." But the Army's Field Manual 34-52, entitled "Intelligence Interrogations," sets forth more restrictive rules than these.

It prohibits the infliction of pain through the use of chemicals or bondage; by forcing the person to stand, sit or kneel in an abnormal position for long time, and deprivation of food. The Army also prohibits mock executions, deprivation of sleep and chemically-induced psychosis (Priest & Smith). A spokesman for White House counsels said that the President had directed the military to treat al Qaeda and Taliban detainees humanely and according to the principles set down by the Geneva Conventions (Priest & Smith 2004).

The memo was intended only as a confidential legal advice within the executive branch, according to the spokesman. It is stated U.S. policy to comply with all U.S. laws regarding the treatment of detainees according to the Constitution, federal statues ad treaties. Yet the legal interpretation of torture provided by the Justice Department for the CIA sought to establish what aggressive treatments fell outside the legal definition of torture. It said that it would be difficult to isolate a specific act as constituting torture.

It listed seven techniques, which the courts would consider torture. These were severe beatings with truncheons and clubs, threats of imminent death, burning with cigarette, electric shocks to the genitals, rape or sexual assault, and forcing one prisoner watch another person get tortured. It was not sure if acts falling short of these would not constitute torture. The memo's source believed that extreme interrogation techniques similar to these and the type of harm caused could violate law (Priest & Smith).

Mental Pain and Suffering Torture must result in significant psychological harm at significant duration, such as months or even years (Priest & Smith 2004). The development of mental disorders, drug-induced dementia, post traumatic stress disorder and chronic depression would demonstrate this. The memo said that an interrogator could prove that he acted in good faith by taking prior steps, which wound not amount to the violations.

These could be surveying professional literature, consulting with experts or reviewing past evidence without deliberately intending to cause severe mental or physical pain on another person, which "would not amount to prohibitions set forth by statutes (Priest & Smith). Legal Basis for "Exceptional Interrogations" A review was conducted on March 6, 2003 by the Defense Department, the experts of the Justice Department and other agencies on the limits of torture (Priest & Smith 2004).

The working group was joined by representatives of the military services, the Joints Chief of Staff and the intelligence community in the search for a legal basis for "exceptional interrogations. "Justifications" overlapped whereby treatment of al Qaeda and Taliban detainees differed from that of detainees in Iraq. In the end, Pentagon lawyers agreed on the Justice Department's 2002 position. It concluded that domestic and international laws prohibiting torture could be overruled by the President's wartime authority and the directives he issued (Priest & Smith).

The legal analysis concocted shocked even some of the military lawyers in the working group (Priest & Smith 2004). It said that the 1994 law, which barred and prohibited torture, did not apply to the conduct of U.S. personnel in Guatanamo Bay. The Pentagon group report was supervised by General Counsel William J. Haynes II. He commented that, since the President has inherent constitutional authority over a military campaign, the 1994 prohibition "must be construed as inapplicable to interrogations" conducted in pursing his authority as Commander-in-Chief.

Neither did the anti-torture law apply to those conducted outside U.S. maritime and territorial jurisdiction, such as Iraq or Afghanistan. It, however, warned that Congress and the Justice Department would have problems enforcing the law if the military would act in obedience to presidential orders. The working group then concentrated on the definition of torture according to domestic and international law and making the group's legal defenses coherent with it (Priest & Smith).

The language of the Pentagon report was quite similar to that of 2002 Justice Department memo in response to the CIA request for advice (Priest & Smith 2004). It stated that "if a government defendant were to harm an enemy combatant during an interrogation" in a way, which would seem to violate criminal prohibition, it would be for the purpose of preventing further attacks on the United States by the Al Qaeda terrorist network.

It could then be argued that this would draw from the Executive branch's constitutional authority to protect the nation from attacks and justify the actions. It would also provide government soldiers with the justification of following "superior orders" in conducting these "exceptional interrogations" unless the conduct became "patently unlawful." Resounding the reasoning of the 2002 memo, it argued that the mere infliction of pain and suffering would not be unlawful. It had to be severe (Priest & Smith).

The Defense Department spokesman continued to say that the March 2003 memo was "a scholarly effort" that redefined the perimeters of the law between what is legal and what is put into practice (Priest & Smith 2004). He said that the working group scrutinized at least 25 interrogation techniques, 24 of which were approved by the Defense Secretary. These 24 were used in a classified directive issued on April 16, 2003 to govern all military activities at Guantanamo Bay. The Pentagon, however, refused to share these 24 interrogation procedures with the public (Priest & Smith).

Torture and Rape in Iraq Prisons During a fact-finding meeting with former detainees in Baghdad, a Michigan legal team found evidence of reported prisoner abuse in 25 U.S.-run detention centers, most of them not publicly known (Croke 2004). Of the 25, only 3 were then reported to have subjected prisoners to torture and abuse. The list included actual prisons and other detention centers at military bases. The actual prisons were al-Salihiya Prison in Baghdad, the infamous Abu Ghraib and one at Camp Bucca in Um-Qasr, a Coalition-built.