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Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody

In case you missed it, the Executive Summary of the Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody can be found here. Some highlights [“U” means unclassified; bold is my emphasis added]:

(U) On February 7, 2002, President Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al Qaeda and concluding that Taliban detainees were not entitled to prisoner of war status or the legal protections afforded by the Third Geneva Convention.  The President’s order closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al Qaeda or Taliban detainees.  While the President’s order stated that, as “a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions,” the decision to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in U.S. custody.

(U) In December 2001, more than a month before the President signed his memorandum,
the Department of Defense (DoD) General Counsel’s Office had already solicited information on
detainee “exploitation” from the Joint Personnel Recovery Agency (JPRA), an agency whose expertise was in training American personnel to withstand interrogation techniques considered illegal under the Geneva Conventions.

(U) JPRA is the DoD agency that oversees military Survival Evasion Resistance and
Escape (SERE) training.  During the resistance phase of SERE training, U.S. military personnel are exposed to physical and psychological pressures (SERE techniques) designed to simulate conditions to which they might be subject if taken prisoner by enemies that did not abide by the Geneva Conventions.  As one JPRA instructor explained, SERE training is “based on illegal exploitation (under the rules listed in the 1949 Geneva Convention Relative to the Treatment of
Prisoners of War) of prisoners over the last 50 years.”
The techniques used in SERE school, based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, include stripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures.  It can also include face
and body slaps and until recently, for some who attended the Navy’s SERE school, it included

(U) Typically, those who play the part of interrogators in SERE school neither are trained interrogators nor are they qualified to be.  These role players are not trained to obtain reliable intelligence information from detainees.  Their job is to train our personnel to resist providing
reliable information to our enemies. As the Deputy Commander for the Joint Forces Command
(JFCOM), JPRA’s higher headquarters, put it: “the expertise of JPRA lies in training personnel how to respond and resist interrogations – not in how to conduct interrogations.”  Given JPRA’s role and expertise, the request from the DoD General Counsel’s office was unusual.  In fact, the Committee is not aware of any similar request prior to December 2001.  But while it may have been the first, that was not the last time that a senior government official contacted JPRA for advice on using SERE methods offensively.  In fact, the call from the DoD General Counsel’s office marked just the beginning of JPRA’s support of U.S. government interrogation efforts.

*     *     *

(U) On August 1, 2002 . . . the Department of Justice’s Office of Legal Counsel (OLC) issued two legal opinions.  The opinions were issued after consultation with senior Administration attorneys, including then- White House Counsel Alberto Gonzales and then-Counsel to the Vice President David Addington.  Both memos were signed by then-Assistant Attorney General for the Office of Legal Counsel Jay Bybee.  One opinion, commonly known as the first Bybee memo, was addressed to Judge Gonzales and provided OLC’s opinion on standards of conduct in interrogation required under the federal torture statute.  That memo concluded:

[F]or an act to constitute torture as defined in [the federal torture statute], it must
inflict pain that is difficult to endure. Physical pain amounting to torture must be
equivalent in intensity to the pain accompanying serious physical injury, such as
organ failure, impairment of bodily function, or even death. For purely mental
pain or suffering to amount to torture under [the federal torture statute], it must
result in significant psychological harm of significant duration, e.g., lasting for
months or even years.

(U) In his book The Terror Presidency, Jack Goldsmith, the former Assistant Attorney General of the OLC who succeeded Mr. Bybee in that job, described the memo’s conclusions:

Violent acts aren’t necessarily torture; if you do torture, you probably have a
defense; and even if you don’t have a defense, the torture law doesn’t apply if you
act under the color of presidential authority.

(U) The other OLC opinion issued on August 1, 2002 is known commonly as the Second
Bybee memo.  That opinion, which responded to a request from the CIA, addressed the legality of specific interrogation tactics.  While the full list of techniques remains classified, a publicly released CIA document indicates that waterboarding was among those analyzed and approved.  CIA Director General Michael Hayden stated in public testimony before the Senate Intelligence Committee on February 5, 2008 that waterboarding was used by the CIA.  And Steven Bradbury, the current Assistant Attorney General of the OLC, testified before the House Judiciary Committee on February 14, 2008 that the CIA’s use of waterboarding was “adapted from the SERE [Survival Evasion Resistance and Escape (SERE)] training program.”

(U) Before drafting the opinions, Mr. Yoo, the Deputy Assistant Attorney General for the OLC, had met with Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, to discuss the subjects he intended to address in the opinions.  In testimony before the House Judiciary Committee, Mr. Yoo refused to say whether or not he ever discussed or received information about SERE techniques as the memos were being drafted.  When asked whether he had discussed SERE techniques with Judge Gonzales, Mr. Addington, Mr. Yoo, Mr. Rizzo or other senior administration lawyers, DoD General Counsel Jim Haynes testified that he “did discuss SERE techniques with other people in the administration.”  NSC Legal Advisor John Bellinger said that “some of the legal analyses of proposed interrogation techniques that were prepared by the Department of Justice… did refer to the psychological effects of resistance training.”

(U) In fact, Jay Bybee the Assistant Attorney General who signed the two OLC legal opinions said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys.  Judge Bybee said that he used that assessment to inform the August 1, 2002 OLC legal opinion that has yet to be publicly released.  Judge Bybee also recalled discussing detainee interrogations in a meeting with Attorney General John Ashcroft and John Yoo in late July 2002, prior to signing the OLC opinions.  Mr. Bellinger, the NSC Legal Advisor, said that “the NSC’s Principals reviewed CIA’s proposed program on several occasions in 2002 and 2003” and that he “expressed concern that the proposed CIA interrogation techniques comply with applicable U.S. law, including our international obligations.”

Some conclusions from the report:

Conclusion 6: The Central Intelligence Agency’s (CIA) interrogation program included at least
one SERE training technique, waterboarding.  Senior Administration lawyers, including Alberto
Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, were
consulted on the development of legal analysis of CIA interrogation techniques.  Legal opinions subsequently issued by the Department of Justice’s Office of Legal Counsel (OLC) interpreted
legal obligations under U.S. anti-torture laws and determined the legality of CIA interrogation techniques.  Those OLC opinions distorted the meaning and intent of anti-torture laws, rationalized the abuse of detainees in U.S. custody and influenced Department of Defense determinations as to what interrogation techniques were legal for use during interrogations conducted by U.S. military personnel.

*     *     *

Conclusion 19: The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a
few soldiers acting on their own.
Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at GTMO.  Secretary of Defense Donald Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody.  What followed was an erosion in standards dictating that detainees be treated humanely.

A very sad chapter in the history of the American Republic. And from the perspective of international legal precedence, the words of Galatians 6, ring far too true– “for whatever a man sows, that he will also reap.”

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.