U.S. Treatment of Prisoners in Iraq: Selected Legal Issues
CRS Report for Congress
U.S. Treatment of Prisoners in Iraq:
Selected Legal Issues
Updated October 27, 2005
Jennifer K. Elsea
American Law Division
Congressional Research Service ˜ The Library of Congress
U.S. Treatment of Prisoners in Iraq:
Selected Legal Issues
Photographs depicting the apparent abuse of Iraqi detainees at the hands of U.S.
military personnel at Abu Ghraib prison in Iraq resulted in numerous investigations,
congressional hearings, and prosecutions, raising questions regarding the applicable
law. The international law of armed conflict, in particular, those parts relating to
belligerent occupation, applies in Iraq. The four Geneva Conventions of 1949 related
to the treatment of prisoners of war (POW) and civilian detainees, as well as the
Hague Regulations define the status of detainees and state responsibility for their
treatment. Other international law relevant to human rights and to the treatment of
prisoners may also apply. For example, the International Covenant on Civil and
Political Rights prohibits “cruel, inhuman or degrading treatment.” The U.N.
Declaration on Human Rights and the U.N. Convention Against Torture (CAT) is
also relevant. Federal statutes that implement the relevant international law, such as
the War Crimes Act of 1996 and the Torture Victim Protection Act, as well as other
criminal statutes with extraterritorial application may also come into play. Finally,
the law of Iraq as amended by regulations that were issued by the Coalition
Provisional Authority (CPA) may apply in some circumstances.
This report summarizes pertinent provisions of the Geneva Conventions
Relative to the Treatment of Victims of War (Geneva Conventions) and other
relevant international agreements. The report begins with a discussion of
international and U.S. standards pertaining to the treatment of prisoners. A
discussion of accountability in case of breach of these standards follows, including
potential means of asserting jurisdiction over alleged violators, either in military
courts under the Uniform Code of Military Justice (UCMJ) or U.S. federal courts, by
applying U.S. criminal statutes that explicitly apply extraterritorially or within the
special maritime or territorial jurisdiction of the United States (as defined in 18
U.S.C. § 7), or by means of the Military Extraterritorial Jurisdiction Act (MEJA).
The section that follows discusses international requirements to provide redress for
those whose treatment at the hands of U.S. officials may have fallen below the
standards outlined in the first section of the report. Finally, the report summarizes
relevant congressional activity during the 108th and 109th Congresses, including a
brief discussion of the anti-torture provision of P.L.109-13 (H.R. 1268) as well as
relevant pending legislation (H.R. 3003, S. 12, H.R. 112, H.R. 2863, S. 1042). This
report will be updated.
International Law Protecting Prisoners.................................2
Protection of Prisoners under the Geneva Conventions of 1949 .........2
Prisoners of War (POW)....................................2
Responsibility for Breaches..................................9
Universal Declaration of Human Rights (UDHR)....................11
International Covenant on Civil and Political Rights (ICCPR)..........12
U.N. Convention Against Torture (CAT)..........................13
U.S. Implementation of CAT................................14
Torture Victim Protection Act (TVPA)........................15
Accountability for Violations........................................15
U.S. Military Law........................................16
U.S. Federal Law.........................................17
U.S. Federal Law.........................................17
Iraqi Government Authority over Contractors...................20
U.S. Provisions for Compensation ...............................22
The Military Claims Act...................................22
The Foreign Claims Act....................................23
Role of Congress.................................................23
Oversight and Resolutions — 108th Congress.......................23
Legislation — 108th Congress...................................25
National Defense Authorization Act for FY2005, P.L. 108-375.....25
Prohibition on Funds to Justify Torture........................27th
Issues for the 109 Congress....................................27
U.S. Treatment of Prisoners in Iraq:
Selected Legal Issues
The Army report charging that U.S. Military Police and other personnel,
including civilian contractor personnel, abused Iraqi prisoners held under the
authority of the Coalition Provisional Authority (CPA) has given rise to questions
regarding the applicable law. The report1 was the result of an Army investigation
initiated after a soldier turned over to military law enforcers photographs depicting
U.S. military personnel subjecting Iraqi detainees to treatment that has been
described as degrading, inhumane, and in some cases, tantamount to torture. A report
by the International Committee of the Red Cross (ICRC) relating to the treatment of
prisoners by U.S. forces was also made public.2 The results of several investigations
initiated by the Department of Defense (DOD) have been presented to Congress.3
Congress included several measures in the National Defense Authorization Act for
FY2005, P.L. 108-375, to address the treatment of detainees and jurisdiction over
persons responsible for their abuse. As new allegations of prisoner maltreatment
continue to surface, congressional interest in the matter is not likely to diminish any
This report summarizes pertinent provisions of the four 1949 Geneva
Conventions Relative to the Treatment of Victims of War (collectively known as “the
Geneva Conventions”) and other international agreements concerning the treatment
of certain types of prisoners. The report begins with a discussion of international and
U.S. standards regarding the treatment of prisoners. A discussion of accountability
in case of breach of these standards follows, including potential means of asserting
jurisdiction over alleged violators, either in military courts or U.S. federal courts.
The report then discusses international requirements and U.S. procedures to provide
1 Lt. General Ricardo Sanchez, the senior U.S. Commander in Iraq, requested U.S. Central
Command (CENTCOM) to conduct an investigation. Major General Antonio M. Taguba
was appointed to conduct an investigation into the 800th MP Brigade’s detention and
internment operations at the Abu Ghraib prison in Baghdad. General Taguba’s report was
issued on February 26, 2004, but was not made publicly available until graphic photos
depicting U.S. soldiers abusing Iraqi prisoners were shown on 60 Minutes II, April 28, 2004.
A redacted version of the Taguba Report is available at
2 Report of the International Committee of the Red Cross (ICRC) on the Treatment by the
Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva
Conventions in Iraq During Arrest, Internment and Interrogation (Feb. 2004), available at
[http://www.cbsnews.com/htdocs/pdf/redcrossabuse.pdf] [hereinafter “ICRC Report”].
3 The Department of Defense (DOD) website has links to reports as well as other
information regarding the investigations and prosecutions at
redress for those whose treatment at the hands of U.S. officials may have fallen
below the standards outlined in the first section of the report. Finally, the report
summarizes relevant congressional activity to date.
International Law Protecting Prisoners
The international law of armed conflict, in particular, those parts relating to
belligerent occupation, applies in Iraq.4 The four Geneva Conventions of 19495 and6
the Hague Regulations play an important role. Other international law relevant to
human rights and to the treatment of prisoners may also apply. For example, the
International Covenant on Civil and Political Rights prohibits “cruel, inhuman or
degrading treatment.”7 The Convention Against Torture (CAT) is also relevant.8
Protection of Prisoners under the Geneva Conventions of
The purpose of the four Geneva Conventions of 1949 is to mitigate the harmful
effects of war on all persons who find themselves in the hands of a belligerent party.
Each of the conventions provides specific protections for a defined category of
persons who are not, or are no longer, taking part in hostilities, including those who
are detained for any reason. Whatever status a particular detainee may be assigned,
the Geneva Conventions prohibit torture and inhumane or degrading treatment in all
circumstances, including for purposes of interrogation.
Prisoners of War (POW). POW status under the third Geneva Convention
(“GPW”) offers the highest level of protection, including the right to be tried by court
martial (or national court, if a soldier of the Detaining Power could be tried that way)
if accused of a crime. In case of doubt as to whether a particular captive is entitled
to POW status, the Detaining Power must treat the detainee as a POW until a
competent tribunal determines the status of the individual. (GPW Article 5).
4 For a description of law currently applicable in Iraq, see CRS Report RS21820, Iraq:
Transition to Sovereignty, by Kenneth Katzman and Jennifer Elsea.
5 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, 6 U.S.T. 3114; Geneva Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 6 U.S.T.
3217; Geneva Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3316
[hereinafter “GPW”]; Geneva Convention Relative to the Protection of Civilian Persons in
Time of War, 6 U.S.T. 3516 [hereinafter “GC”], (entered into force Oct. 21, 1950). Both
the United States and Iraq are parties to the Conventions.
6 Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,
7 See International Covenant on Civil and Political Rights, art. 7, 999 U.N.T.S. 171 (1966)
8 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,Dec. 10, 1984, 1465 U.N.T.S. 113, reprinted in 23 I.L.M. 1027 (1984) and 24
I.L.M. 535 (1985) (entered into force June 26, 1987)[hereinafter “CAT”].
Article 13, GPW, provides that “prisoners of war must at all times be protected,
particularly against acts of violence or intimidation and against insults and public
curiosity.” Article 14 states that prisoners of war “are entitled in all circumstances to
respect for their persons and their honor.” Article 17 states that “[n]o physical or
mental torture, nor any other form of coercion, may be inflicted on prisoners of war
to secure from them information of any kind whatever. Prisoners of war who refuse
to answer may not be threatened, insulted, or exposed to any unpleasant or
disadvantageous treatment of any kind.” Interrogators are permitted to ask questions,
but POWs are required to divulge only their name and limited identifying
information. Tactics such as trickery or promises of improved living conditions are
Civilians Detainees. Civilians who inhabit occupied territory are “protected
persons” under the fourth Geneva Convention (“GC”),10 and are entitled under article
their religious convictions and practices, and their manners and customs.” While an
occupying power is permitted to “take such measures of control and security in
regard to protected persons as may be necessary as a result of the war,” Article 27
provides further that “[t]hey shall at all times be humanely treated, and shall be
protected especially against all acts of violence or threats thereof and against insults
and public curiosity.” Article 32 forbids any “measure of such a character as to cause
the physical suffering or extermination of protected persons in their hands. . .
9 See HOWARD S. LEVIE, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 108
(1979). For a more detailed discussion of interrogation methods, see CRS Report RL32567,
Lawfulness of Interrogation Techniques under the Geneva Conventions, by Jennifer K.
10 Persons with enemy nationality who are not eligible for POW status or other protected
status under any of the Conventions and who are detained by a belligerent on its own
territory, or presumably elsewhere, are also “protected persons,” unless their state of
nationality is not a party to the Conventions. While nationals of a neutral state held in the
territory of a belligerent state are “protected persons” only if there are no diplomatic
relations between those two states, there is some debate as to whether nationals of neutral
states captured in occupied territory are protected. GC art. 4 states in relevant part:
Persons protected by the Convention are those who, at a given moment and in any manner
whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party
to the conflict or Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by it.
Nationals of a neutral State who find themselves in the territory of a belligerent State, and
nationals of a co-belligerent State, shall not be regarded as protected persons while the
State of which they are nationals has normal diplomatic representation in the State in
whose hands they are. (Emphasis added).
Such persons are, however, clearly entitled to the assistance of a “Protective Power” or the
ICRC. GC art. 11.
The articles in Part II (GC arts. 13-26) cover “the whole of the populations of the countries
in conflict, without any adverse distinction based, in particular, on race, nationality, religion
or political opinion. . . .” GC art. 13.
[including] not only . . . murder, torture, corporal punishment, mutilation and medical
or scientific experiments not necessitated by the medical treatment of a protected
person but also to any other measures of brutality whether applied by civilian or
Civilians may be detained or interned by an occupying power only if “security
requirements make such a course absolutely necessary.” (GC art. 42). Internment
or assigned residence is the most severe measure allowed in the cases of protected
civilians who pose a definite security threat (GC art. 41(1)), and these measures are
to be reviewed by a court or administrative board at least twice annually. (GC art.
43). Article 31 provides that “[n]o physical or moral coercion shall be exercised
against protected persons, in particular to obtain information from them or from third
Protected civilians may be imprisoned as a punitive measure only after a regular
trial, subject to the protections in articles 64 through 77. Additionally, article 33
provides that “[c]ivilians may not be punished for an offence he or she has not
personally committed,” and prohibits all forms of collective penalties and
There is also a prohibition against removing protected persons from occupied
territory. GC art. 49 states:
Individual or mass forcible transfers, as well as deportations of protected persons
from occupied territory to the territory of the Occupying Power or to that of any
other country, occupied or not, are prohibited, regardless of their motive.
There is an exception that allows the temporary evacuation of an area when
absolutely necessary for the security of the population or for imperative reasons of
military necessity. However, evacuees are not to be transported outside the occupied
territory unless such a measure is unavoidable. Under GC art. 147, the “unlawful
deportation or transfer or unlawful confinement of a protected person” is a “grave
breach” of the convention. It may also be permissible to relocate persons outside of
the occupied territory when it is to their benefit. GC art. 132 allows parties to the
Geneva Conventions to “conclude agreements for the . . . accommodation in a neutral
country . . . certain classes of internees, in particular children, pregnant women and
mothers with infants and young children, wounded and sick, and internees who have
been detained for a long time.”
A report that the U.S. Central Intelligence Agency transferred certain detainees
outside of Iraq for interrogation purposes has brought some accusations that the
United States is in breach of international law.11 The Administration reportedly relies
for legal support on a draft opinion from the Justice Department’s Office of Legal
Counsel (OLC) construing the prohibition as applying to the expulsion from Iraq of
persons who have a lawful right to be there, but not to the deportation of illegal aliens
in accordance with local law or the temporary removal of persons who have not been
11 Dana Priest, Memo Lets CIA Take Detainees Out of Iraq, WASH. POST, Oct. 24, 2004 at
charged with a crime to undergo interrogation at some location outside Iraq.12
Regarding the crux of GC art. 49 as a prohibition on the “forceful uprooting of
residents from their homes,”13 the OLC memorandum concludes that the temporary
transfer abroad of protected persons is not among the historical wartime practices GC
art. 49 was intended to alleviate. Thus, it concludes that the relocation of protected
persons for a “brief but not indefinite” period is permissible so long as the transferee
has not been charged with any offense, but that the treaty’s other protections would
continue to apply.
Other Detainees. Some argue that “unlawful combatants” are neither entitled14
to POW status nor civilian rights under the Geneva Conventions. The Department
of Defense has not determined, however, that any of the detainees in Iraq are15
“unlawful combatants.” Others assert that persons who commit hostile acts but are
not entitled to POW status have the status of civilians.16 The Department of Defense
maintains that the Geneva Conventions have applied in Iraq since the onset of
combat operations,17 unlike in Afghanistan, apparently indicating that insurgents in
Iraq are treated as protected civilians under the GC rather than as “unlawful
combatants.”18 However, the Administration had earlier determined that the Taliban
were covered by the Geneva Conventions, but were nonetheless not entitled to status
as POWs or protected persons because they failed to meet the standards for POW19
treatment under GPW art. 4. Some observers have argued that this apparent
12 Draft Memorandum from Jack Goldsmith, Assistant Attorney General, U.S. Dept. of
Justice, to Alberto R. Gonzales, Counsel to the President, Permissibility of Relocating
Certain “Protected Persons” From Occupied Iraq, March 19, 2004, available at
visited Oct. 29, 2004).
13 See id
14 For an explanation of the “unlawful combatant” issue, see CRS Report RL31367,
Treatment of ‘Battlefield Detainees’ in the War on Terrorism, by Jennifer Elsea.
15 See Eric Schmitt and Douglas Jehl, M.P.’s Received Orders to Strip Iraqi Detainees, N.Y.
TIMES, May 18, 2004, at A1, A11.
16 See Department of the Army, FM 27-10, The Law of Land Warfare (hereinafter “FM 27-
If a person is determined by a competent tribunal, acting in conformity with
Article 5, GPW, not to fall within any of the categories listed in Article 4, GPW,
he is not entitled to be treated as a prisoner of war. He is, however, a “protected
person” within the meaning of Article 4, GC.(internal citations omitted).
17 See Defense Department Background Briefing, May 14, 2004, available at
18 Id.(stating that, “for the most part,. . . the people under U.S. control are security internees
who have engaged in or have been suspected of engaging in activities which threaten the
security of the state and coalition forces.). But see Douglas Jehl and Neil A. Lewis, U.S.
Disputed Protected Status of Iraq Inmates, N.Y. TIMES, May 23, 2004 (reporting that U.S.
response to ICRC report about prisoner abuse allegedly asserted that many Iraqi prisoners
were not entitled to the full protections of the Geneva Conventions).
19 See Eric Schmitt and Douglas Jehl, Army’s Report Faults General in Prison Abuse, N.Y.
inconsistency is at least partially to blame for the confusion with respect to the
permissibility of harsh interrogation techniques in detention facilities in Iraq. It has
recently been reported that the Administration considers non-Iraqi detainees to be
excluded from the status of “protected persons.”20
GC art. 5 provides some exceptions for the treatment of protected persons
deemed security risks21:
Where in occupied territory an individual protected person is detained as a spy
or saboteur, or as a person under definite suspicion of activity hostile to the
security of the Occupying Power, such person shall, in those cases where
absolute military security so requires, be regarded as having forfeited rights of22
communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity, and in
case of trial, shall not be deprived of the rights of fair and regular trial prescribed
by the present Convention. They shall also be granted the full rights and
privileges of a protected person under the present Convention at the earliest date
consistent with the security of the State or Occupying Power, as the case may be.
GC art. 143, providing that the delegates of the Protecting Power or ICRC are
to have unlimited access to prisoner of war camps and internment facilities for
interviewing protected persons, also contains an exception for security. The
Detaining Power may prevent such visits for reasons of “imperative military
necessity,” but only as an “exceptional and temporary measure.” It is apparently
TIMES, August 27, 2004, at A1; Human Rights Watch, The Road to Abu Ghraib, June 2004,
available at [http://www.hrw.org/reports/2004/usa0604/usa0604.pdf].
20 Douglas Jehl, U.S. Action Bars Right of Some Captured In Iraq, NY TIMES, Oct. 26, 2004.
21 Most prisoners in U.S. custody at Abu Ghraib in Iraq fall into this category. See AR 15-6
Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade,
LTG Anthony R. Jones and MG George R. Fay 11 (2004), available at
[http://www.defenselink.mil/news/Aug2004/d20040825fay.pdf][hereinafter “Fay Report”].
The report explains further:
[A] “Civilian Internee” is someone who is interned during armed conflict or
occupation for security reasons or for protection or because he has committed an
offense against the detaining power. Within the confinement facility, however,
there were further sub-classifications that were used, to include criminal
detainee, security internee, and MI Hold. Security Internee[s] are [c]ivilians
interned during conflict or occupation for their own protection or because they
pose a threat to the security of coalition forces, or its mission, or are of
intelligence value. This includes persons detained for committing offenses
(including attempts) against coalition forces (or previous coalition forces),
members of the Provisional Government, Non-Government Organizations, state
infrastructure, or any person accused of committing war crimes or crimes against
humanity. (References omitted).
22 Rights of communication means communication with the outside world, including those
defined in articles 25 (correspondence of a personal nature with family members), 30
(visitation by ICRC representatives and other relief organization personnel), 106 (right to
notify family of internment), and 107 (right to send and receive mail).
under this exception that ICRC representatives were denied access to some detainees
at Abu Ghraib.23 However, most undocumented “ghost detainees” appear to have
been kept from the view of ICRC representatives by the CIA, operating outside
military procedures for documenting detainees.24
Nationals of a state that is not a party to the conventions are not “protected
persons” under GC, and nationals of neutral or co-belligerent states are not regarded
as protected persons “while the State of which they are nationals has normal
diplomatic representation in the State in whose hands they are.”25 It is widely
accepted that persons not covered by more favorable provisions of the Geneva
Conventions retain protection under Common Article 3 to the Geneva Conventions,26
23 See Military Intelligence at Abu Ghraib Prison, Hearing before the Senate Armed Services
Committee, September 9, 2004, transcript available at Westlaw, 2004 WL 2006471
(F.D.C.H.) (testimony of General Paul Kern, Commanding General, United States Army
Materiel Command)[hereinafter “Kern Testimony”](stating that ICRC access to eight
detainees was denied “under an Article 143 exception, which says for military security
purposes you do not have to register them immediately”); Fay Report at 66 (reporting that
ICRC delegates had been prevented from interviewing eight detainees in January and March,
24 See Kern Testimony, supra note 23. General Kern explained to the House Armed
Services Committee that
The Article 143 exception applies primarily when you’re looking at military
operations. So if we were to pick up a detainee today and he were a key to an
operation which was already being planned, and divulging the fact that we had
that individual in detention in an interrogation. . .
Military Intelligence at Abu Ghraib Prison, Hearing before the House of Representatives
Armed Services Committee, September 9, 2004, transcript available at Westlaw, 2004 WL
2030770 (F.D.C.H.). He also stated that the procedure must be approved by the combatant
commander and monitored by the command structure. Id. General Fay added that prisoners
excepted from Article 143 are documented, but that their identity is not disclosed outwardly.
25 GC art. 4. However, the Coalition forces in Iraq have determined that members of the
rebel group Mujahedeen-e-Khalq (MEK), an Iranian opposition group designated by the
U.S. State Department as a terrorist organization, are to be treated as protected persons
within the meaning of the GC. See Department of State News Briefing, July 26, 2004,
available at Westlaw, 2004 WL 1659373 (F.D.C.H.). State Department Deputy Spokesman
J. Adam Ereli explained that the status “relates to their involvement in an activity as
belligerents in the conflict between the coalition and Iraq.”
26 The 1949 Geneva Conventions share several types of common provisions. The first three
articles of each Convention are identical. Common Article 3, expressly applicable only to
conflicts “not of an international nature,” has been described as “a convention within a
convention” to provide a general formula covering respect for intrinsic human values that
would always be in force, without regard to the characterization the parties to a conflict
might give it. See JEAN PICTET, HUMANITARIAN LAW AND THE PROTECTION OF WAR
VICTIMS 32 (1975). Originally a compromise between those who wanted to extend the
Convention’s protection to all insurgents and rebels and those who wanted to limit it to wars
between states, Common Article 3 is now considered to have attained the status of
customary international law. See KRIANGSAK KITTICHAISAREE, INTERNATIONAL CRIMINAL
LAW 188 (2001). Common Article 3 is now widely considered to embody the minimum set
which prohibits “[o]utrages upon personal dignity, in particular, humiliating and
Such persons may also be protected by article 75 of Additional Protocol I to the
Geneva Conventions.28 Article 75 provides that “persons who are in the power of a
Party to the conflict and who do not benefit from more favorable treatment under the
Conventions . . . shall be treated humanely in all circumstances” and that each state
party “shall respect the person, honor, convictions and religious practices of all such
of rights applicable to persons in international armed conflicts. See, e.g., Military and
Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, ¶¶ 218, 255 (June 27); Prosecutor
v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion on Jurisdiction ¶¶ 65-74
(Aug. 10, 1995); JORDAN J. PAUST ET AL., INTERNATIONAL CRIMINAL LAW 692-95, 813-14,
COMMENTARY ON THE GENEVA CONVENTIONS 14 (J. Pictet, ed., 1960)[hereinafter
“COMMENTARY”) (“This minimum requirement in the case of a non-international armed
conflict, is a fortiori applicable in international conflicts. It proclaims the guiding principle
common to all four Geneva Conventions, and from it each of them derives the essential
provision around which it is built.”). Reciprocity is not considered necessary for its
application to a State party. See id. at 38 (noting that “the effect on [a State party] of
applying Article 3 [in an insurgency] cannot be in any way prejudicial; for no Government
can possibly claim that it is 'entitled' to make use of torture and other inhuman acts
prohibited by the Convention, as a means of combating its enemies”).
27 In pertinent part, Common Article 3 provides:
In the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict shall
be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by
sickness, wounds, detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and
in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular humiliating and
(d) The passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.
28 Protocol Additional to the Geneva Conventions of 12 August 1949 and Related to the
Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S.
but article 75 is widely considered to be universally binding as customary international law.
persons.” Paragraph 2 of Article 75 prohibits, “at any time and in any place
whatsoever, whether committed by civilian or military agents. . . violence to the life,
health, or physical or mental well-being of persons, in particular . . . torture of all
kinds, whether physical or mental,” “corporal punishment,” and “mutilation”;
“outrages upon personal dignity, in particular humiliating and degrading treatment
. . . and any form of indecent assault”; as well as “threats to commit any of the
Responsibility for Breaches. The proper treatment of prisoners is the
responsibility of the detaining power and the individuals directly responsible for their29
conditions. Mistreatment of prisoners of war may incur individual liability under
both international norms and the Uniform Code of Military Justice (UCMJ) and may
amount to “grave breaches” under the Geneva Conventions. Grave breaches under
the GPW include “wilful killing, torture or inhuman treatment, including biological
experiments, wilfully causing great suffering or serious injury to body or health,
compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully
depriving a prisoner of war of the rights of fair and regular trial “ in connection with
an armed conflict. (GPW art. 130).30 Grave breaches under the GC include “wilful
killing, torture or inhuman treatment, including biological experiments, wilfully
causing great suffering or serious injury to body or health, unlawful deportation or
transfer or unlawful confinement of a protected person, . . . or wilfully depriving a
protected person of the rights of fair and regular trial prescribed in the present
Convention . . .”). (GC art. 147).
The Geneva Conventions obligate detaining powers to “enact any legislation
necessary to provide effective penal sanctions for persons committing, or ordering
to be committed” grave breaches, and to “search for persons alleged to have
committed, or to have ordered to be committed, . . . grave breaches, and shall bring
such persons, regardless of their nationality, before its own courts.” (GPW art. 129).
In addition to the foregoing penal provisions for grave breaches, Article 129 directs
each party to take measures to suppress all violative acts short of grave breaches.
Article 127 obligates parties to instruct their people, in particular members of the
military, about the requirements of the GPW. Article 127 provides further that “[a]ny
military or other authorities, who in time of war assume responsibilities in respect of
prisoners of war, must possess the text of the Convention and be specially instructed
as to its provisions.” Detainees have the right to protest their treatment to the
29 GPW art. 12 addresses the strict State responsibility of a Detaining Power:
Prisoners of war are in the hands of the enemy Power, but not of the individuals
or military units who have captured them. Irrespective of the individual
responsibilities that may exist, the Detaining Power is responsible for the
treatment given them.
30 “Grave breaches” may also include “serious breaches” listed under art. 13, GPW. See
LEVIE, supra note 8, at 352 (noting that the French version of the treaty text uses the same
term in both articles 13 and 130). Some authors distinguish “torture” from other forms of
maltreatment in that its purpose is to elicit a confession or information. Id. at 357-58
(arguing that, to the contrary, “torture inflicted as punishment, out of sheer sadism, or . . .
to ‘convert’ an adamant prisoner of war to the Detaining Power’s political ideology” or even
torture without motive should be considered a grave breach).
detaining power or to a neutral power or organization serving as the protecting power
(ordinarily the International Committee of the Red Cross) (GPW art. 78).
U.S. Military Implementation. U.S. Implementation of the Geneva
Conventions with respect to prisoners is found primarily in United States Army
Regulation (AR) 190-8.31 AR 190-8 prescribes the rules for the treatment of enemy
prisoners of war (EPW), retained personnel (RP — medical personnel, chaplains, and
Red Cross representatives), civilian internees (CI), and other detainees (OD — whose
status has not yet been determined but who are to be treated as EPW in the
meantime), who are in the custody of the U.S. Armed Forces. Paragraph 1-5 of AR
a. U.S. policy, relative to the treatment of EPW, CI and RP in the custody of the
U.S. Armed Forces, is as follows:
(1) All persons captured, detained, interned, or otherwise held in U.S. Armed
Forces custody during the course of conflict will be given humanitarian care and
treatment from the moment they fall into the hands of U.S. forces until final
release or repatriation.
(2) All persons taken into custody by U.S. forces will be provided with the
protections of the GPW until some other legal status is determined by competent
(3) The punishment of EPW, CI and RP known to have, or suspected of having,
committed serious offenses will be administered [in accordance with] due
process of law and under legally constituted authority per the GPW, GC, the
Uniform Code of Military Justice and the Manual for Courts Martial.
(4) The inhumane treatment of EPW, CI, RP is prohibited and is not justified by
the stress of combat or with deep provocation. Inhumane treatment is a serious
and punishable violation under international law and the Uniform Code of
Military Justice (UCMJ).
b. All prisoners will receive humane treatment without regard to race, nationality,
religion, political opinion, sex, or other criteria. The following acts are
prohibited: murder, torture, corporal punishment, mutilation, the taking of
hostages, sensory deprivation, collective punishments, execution without trial by
proper authority, and all cruel and degrading treatment.
c. All persons will be respected as human beings. They will be protected against
all acts of violence to include rape, forced prostitution, assault and theft, insults,
public curiosity, bodily injury, and reprisals of any kind. They will not be
subjected to medical or scientific experiments. This list is not exclusive.
EPW/RP are to be protected from all threats or acts of violence.
d. Photographing, filming, and video taping of individual EPW, CI and RP for
other than internal Internment Facility administration or
intelligence/counterintelligence purposes is strictly prohibited. No group, wide
31 See also Department of the Army Field Manual 27-10, The Law of Land Warfare (1956)
[hereinafter “FM 27-10].
area or aerial photographs of EPW, CI and RP or facilities will be taken unless
approved by the senior Military Police officer in the Internment Facility
commander’s chain of command.
e. A neutral state or an international humanitarian organization, such as the
ICRC, may be designated by the U.S. Government as a Protecting Power (PP) to
monitor whether protected persons are receiving humane treatment as required
by the Geneva Conventions. The text of the Geneva Convention, its annexes, and
any special agreements, will be posted in each camp in the language of the EPW,
CI and RP.
. . .
War Crimes Act. War crimes committed by persons not subject to the UCMJ
may be prosecuted in federal court under the War Crimes Act of 1996.32 Under that
statute, war crimes committed by or against U.S. nationals are punishable by fine or
imprisonment, and a war crime that results in the death of a victim, is subject to the
death penalty. (18 U.S.C. § 2441 (a-b)). War crimes are defined to include grave
breaches under the Geneva Conventions and violations of Common Article 3.33 (18
U.S.C. § 2441 (c)(1-3)).
Universal Declaration of Human Rights (UDHR)
The United Nations has a duty under its Charter to the promote “universal
respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion.”34 The U.N. Charter
obligates U.N. member states to take joint and separate action to promote human
rights and fundamental freedoms for all persons without distinction as to race, sex,
language or religion.35 The United Nations General Assembly adopted the UDHR in
Charter.36 The UDHR prohibits arbitrary arrest, detention or exile,37 as well as torture
and cruel, inhuman or degrading treatment or punishment.38 Although it is a General
Assembly Resolution rather than a treaty, and is therefore technically non-binding,
32 P.L. 104-192, 110 Stat. 2104 (1996), codified at 18 U.S.C. §§ 2441 et seq.
33 Supra note 14.
34 U.N. Charter art. 55.
35 Id. art. 56.
36 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948).
37 Id. art 9. The United States has taken the position that the prohibition against arbitrary
detention exists as a norm under customary international law. See RICHARD B. LILLICH &
HURST HANNUM, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY AND
PRACTICE 136 (3d ed. 1995) (citing Memorial of the United States, Case Concerning United
States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. Pleadings 182
n.36 (Jan. 12, 1980)).
38 UDHR art. 5.
some if not most provisions are considered to be customary law.39 The UDHR does
not contain an enforcement mechanism.
International Covenant on Civil and Political Rights (ICCPR)
The International Covenant on Civil and Political Rights was adopted by the
United Nations to set forth in greater detail the Universal Declaration of Human
Rights. The ICCPR prohibits arbitrary detention40 and “cruel, inhuman or degrading
treatment.”41 Article 10 provides that “[a]ll persons deprived of their liberty shall be
treated with humanity and with respect for the inherent dignity of the human person.”
Article 4 provides for derogation “in time of public emergency which threatens the
life of the nation and the existence of which is officially proclaimed . . . to the extent
strictly required by the exigencies of the situation, provided that such measures are
not inconsistent with their other obligations under international law and do not
involve discrimination solely on the ground of race, colour, sex, language, religion
or social origin.” However, no derogation is permitted from certain rules, including
articles 6 (pertaining to the death sentence), 7 (prohibiting cruel, inhuman or
degrading treatment), 8 (paragraphs 1 and 2 — prohibiting slavery and servitude), 15
(prohibiting retroactive penal sanctions), and 16 (providing all persons are to be
recognized as such by the law).
The United States ratified the ICCPR in 1992, subject to a number of
reservations, understandings and declarations, including a declaration that the ICCPR
is non-self-executing — that is, it does not give rise to a private action in court. The
United States notified the UN that it interprets “cruel, inhuman or degrading
treatment or punishment” to mean the cruel and unusual treatment or punishment
prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution.
President Clinton established the Interagency Working Group on Human Rights
Treaties to implement the ICCPR and other human rights treaties42 with the mandate
to “provide guidance, oversight, and coordination with respect to questions
concerning the adherence to and implementation of human rights obligations and
related matters.”43 In 2001, the responsibilities of the Working Group were
transferred to the newly created National Security Council (NSC) Policy
Coordination Committee (PCC) on Democracy, Human Rights, and International
39 See Filartiga v. Pena-Irala, 630 F.2d 876, 882 (2d Cir. 1980); THEODOR MERON, HUMAN
RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW 82 (1989).
40 See International Covenant on Civil and Political Rights, art. 9(1), 999 U.N.T.S. 171
(1966) [hereinafter ICCPR] (“Everyone has the right to liberty and security of person. No
one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are established by law.”)
41 Id. art. 7.
42 Exec. Order 13,107, 63 Fed. Reg. 68991 (Dec. 10, 1998).
43 Id. § 4. The Order also outlined responsibilities of executive departments and agencies
in compliance with obligations under human rights treaties. Id. § 2.
Operations.44 The United States has not officially proclaimed an emergency or
named measures that would derogate from the ICCPR.
U.N. Convention Against Torture (CAT)
In 1994, the United States ratified the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).45
CAT requires parties to take measures to prevent torture from occurring within any
territory under their respective jurisdictions, regardless of the existence of
“exceptional circumstances,” such as a war or threat of war, internal political
instability or other public emergency.46 CAT defines torture as
“any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a
third person information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an47
Torture does not include “pain or suffering arising only from, inherent in or
incidental to lawful sanctions.” Nor does it include conduct that unintentionally
causes severe pain and suffering.
44 National Security Presidential Directive 1 (NSPD-1), February 13, 2001.
45 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51
(1984) [hereinafter “CAT”]. The United States submitted a notification to the U.N.
Secretary General stating that “... nothing in [CAT] requires or authorizes legislation, or
other action, by the United States of America prohibited by the Constitution of the United
States as interpreted by the United States.” Additionally, the United States declared that,
“pursuant to article 21, paragraph 1, of [CAT], that it recognizes the competence of the
Committee against Torture to receive and consider communications to the effect that a State
Party claims that another State Party is not fulfilling its obligations under the Convention.
It is the understanding of the United States that, pursuant to the above-mentioned article,
such communications shall be accepted and processed only if they come from a State Party
which has made a similar declaration.” Senate ratification was made subject to the
reservation that “the United States considers itself bound by the obligation under article 16
to prevent ‘cruel, inhuman or degrading treatment or punishment’, only insofar as the term
‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and
inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth
Amendments to the Constitution of the United States.” For an analysis of the application
of CAT to interrogation methods, see CRS Report RL32438, U.N. Convention Against
Torture (CAT): Overview and Application to Interrogation Techniques, by Michael John
46 Id. art. 2.
47 Id. art. 1.
CAT obligates its parties to proscribe and punish acts of torture under their
criminal laws, including any attempt to commit torture or any act that constitutes
complicity to torture.48 Additionally, member States are to make the crime of torture
an extraditable offense under their domestic laws, if necessary under their laws
pertaining to extradition.49 States parties also undertake to provide necessary training
to prevent torture and “other acts of cruel, inhuman or degrading treatment or
punishment which do not amount to torture” to “law enforcement personnel, civil or
military, medical personnel, public officials and other persons who may be involved
in the custody, interrogation or treatment of any individual subjected to any form of
arrest, detention or imprisonment,”50 and to “keep under systematic review
interrogation rules, instructions, methods and practices as well as arrangements for
the custody and treatment of persons subjected to any form of arrest, detention or
imprisonment in any territory under its jurisdiction, with a view to preventing any
cases of torture.”51 Statements induced by torture are not to be admitted as evidence
in a criminal proceeding against the victim.52 Victims have a right, under the CAT,
to have their allegations investigated by impartial officers and to pursue means of
redress that afford fair and adequate compensation to the victim or the victim’s
U.S. Implementation of CAT. Congress passed legislation in 1994 to
implement the requirements of the CAT (18 U.S.C.§ 2340 et seq.). Section 2340,
along the lines of the CAT, defines torture in subsection (1) as “an act committed by
a person acting under the color of law specifically intended to inflict severe physical
or mental pain or suffering (other than pain or suffering incidental to lawful
sanctions) upon another person within his custody or physical control.” “Severe
mental pain or suffering” means the prolonged mental harm caused by or resulting
from the infliction or threat to inflict severe physical pain or suffering; the use or
threat to use “mind-altering substances or other procedures calculated to disrupt
profoundly the senses or the personality”; threats of imminent death; and threats to
inflict the above forms of abuse on third persons. (18 U.S.C. § 2340). Persons who54
commit violations outside the United States are subject to fine or imprisonment for
not more than 20 years, or both, and if death results, violators may receive up to life
in prison or the death penalty. (18 U.S.C. § 2340A). Those convicted of conspiracy
48 CAT art. 4.
49 Id. art. 8.
50 Id. art. 10.
51 Id. art. 11.
52 Id. art 15.
53 Id. arts. 13-14.
54 The definition of the “United States” now means “the several States of the United States,
the District of Columbia, and the commonwealths, territories, and possessions of the United
States.” 18 U.S.C. § 2340(3) (as amended by sec. 1089 of P.L. 108-375). Previously, the
“United States” also included the Special Maritime and Territorial Jurisdiction of the United
States as defined in 18 U.S.C. § 7 and aircraft jurisdiction defined in 49 U.S.C. § 46501(2).
The amendment means that places such as military bases and consulates overseas will no
longer be excluded from the coverage of the torture statute.
to commit torture may be punished to the same extent as violators themselves, except
that they are not eligible to receive the death penalty. (18 U.S.C. § 2340A(c)).
Torture Victim Protection Act (TVPA). In 1990, Congress enacted the55
Torture Victim Protection Act (TVPA) to provide an avenue of redress for victims
of torture overseas. The TVPA created a cause of action for any person to seek
recovery for acts of torture committed under color of foreign law from an individual
responsible for the acts who can be “found” within the United States for the purpose56
of serving process. Only individuals with a certain level of personal responsibility
may be sued under the TVPA; other entities are not amenable to suit. Persons acting
as U.S. officials may not be sued under the TVPA, but it may be possible for abused
prisoners to bring suit against them under the Alien Tort Statute.57
Accountability for Violations
It was established during the Nuremberg Tribunals after World War II that
persons who commit war crimes or crimes against humanity may be held individually
accountable, whether they are members of the military or civilians.58
Members of the armed forces are directly subject to the laws of war and may be
tried by international or national tribunals for violations. Military personnel stationed
overseas are also subject to the domestic law of the country where they are stationed,
ordinarily under the terms of a status of forces agreement (SOFA) with the host
country. Under current law, U.S. service members are not subject to legal process
in the Iraqi courts unless the government waives their immunity.59
International Law. Members of the armed forces of a party to an
international armed conflict may be held individually liable for breaches of the law
of war, including for maltreatment of prisoners under their control, whether such
prisoners are under their immediate control or indirect control through the chain of
55 28 U.S.C. § 1350 note.
57 28 U.S.C. § 1350; see CRS Report RL32118, The Alien Tort Statute: Legislative History
and Executive Branch Views, by Jennifer K. Elsea.
58 LEVIE, supra note 8, at 386-87 (noting, however, a Department of Justice opinion that
“only persons exercising governmental authority ordinarily would be in a position to commit
grave breaches against protected persons. . .”).
59 Under CPA Order 17, Status of the CPA, MNFI, Certain Missions and Personnel in Iraq,
Status_of_Coalition__Rev__with_Annex_A.pdf] (last visited Oct. 4, 2004), Coalition forces
are immune from Iraqi legal processes for their conduct during the period the Multinational
Force remains in Iraq, unless the Iraqi transitional government rescinds or amends the order.
See CRS Report RS21820, Iraq: Transition to Sovereignty, by Kenneth Katzman and
command. It is not a defense against a charge of any grave breach of the Geneva
Conventions that an accused was merely following orders,60 although such
circumstances may mitigate liability. Commanders may be held vicariously liable
for abuses committed by persons under their command even where no orders were
issued, if it can be proven that the commander knew or should have known that such
abuses were taking place.61
U.S. Military Law. Service members are subject to military jurisdiction under
the Uniform Code of Military Justice (UCMJ). They may be tried for serious crimes
by general court-martial, and for less serious crimes by summary court-martial or
special court-martial. Service members may also receive administrative sanctions or
The mistreatment of prisoners may be punishable as a crime under article 93,
UCMJ, which forbids “cruelty toward, or oppression or maltreatment of, any person
subject to [the] orders [or the accused]. . . .”62 Article 97 prohibits the arrest or63
detention of any person except as provided by law. The UCMJ also punishes
ordinary crimes against persons such as assault and assault consummated by a
60 See FM 27-10, supra note 18, at para. 509, stating that
a. The fact that the law of war has been violated pursuant to an order of a
superior authority, whether military or civil, does not deprive the act in question
of its character of a war crime, nor does it constitute a defense in the trial of an
accused individual, unless he did not know and could not reasonably have been
expected to know that the act ordered was unlawful. In all cases where the order
is held not to constitute a defense to an allegation of war crime, the fact that the
individual was acting pursuant to orders may be considered in mitigation of
b. In considering the question whether a superior order constitutes a valid
defense, the court shall take into consideration the fact that obedience to lawful
military orders is the duty of every member of the armed forces; that the latter
cannot be expected, in conditions of war discipline, to weigh scrupulously the
legal merits of the orders received; that certain rules of warfare may be
controversial; or that an act otherwise amounting to a war crime may be done in
obedience to orders conceived as a measure of reprisal. At the same time it must
be borne in mind that members of the armed forces are bound to obey only
61 See LEVIE, supra note 8, at 390-91 (citing the Yamashita case, 327 U.S. 1 (1946), stating
that it was generally followed in post-World War II tribunals).
62 10 U.S.C. § 893.
63 10 U.S.C. § 897.
battery,64 assault with intent to commit rape,65 rape,66 sodomy,67 indecent assault,68
murder,69 manslaughter70 and maiming.71 Article 134, UCMJ, also punishes,
“[t]hough not specifically mentioned in [the UCMJ], all disorders and neglects to the
prejudice of good order and discipline in the armed forces, all conduct of a nature to
bring discredit upon the armed forces, and crimes and offenses not capital, of which
persons subject to [the UCMJ] may be guilty. . . .”72 Attempts, conspiracy, and
solicitation to commit a crime are also punishable.73
U.S. Federal Law. U.S. service members are also subject to federal statutes
and may be tried in federal court to the same extent as civilians. Ordinarily, soldiers
who are accused of committing a crime overseas would be prosecuted by court-
martial, and would be protected by the Double Jeopardy Clause74 from being
prosecuted in federal court for the same crime. Soldiers accused of participating in
criminal activity with civilians who are covered by the Military Extraterritorial75
Jurisdiction Act (MEJA) may also be tried in federal court. Former service
members who committed crimes overseas prior to their separation from military
service may also be prosecuted under MEJA.
International Law. The status of contract personnel that serve as part of an
occupying or peacekeeping force falls into a grey area. While civilians
accompanying the armed forces in the field are generally entitled to treatment as
prisoners of war if captured by an enemy State, they are considered non-combatants
who are not authorized to take part in hostilities. To the extent that they carry out
military functions in support of U.S. forces, they are liable under international law
if they commit war crimes.76 In particular, their acts could amount to “grave
64 10 U.S.C. § 928.
65 10 U.S.C. § 934.
66 10 U.S.C. § 920.
67 10 U.S.C. § 925.
68 10 U.S.C. § 934.
69 10 U.S.C. § 918
70 10 U.S.C. § 919.
71 10 U.S.C. § 924.
72 10 U.S.C. § 934.
73 10 U.S.C. §§ 880-882.
74 U.S. CONST. amend V; see Wade v. Hunter, 336 U.S. 684 (1949).
75 18 U.S.C. § 3261 et seq. See infra note 65 and accompanying text.
76 See FM 27-10, supra note 18, at para. 499 (defining “war crime” as “the technical
expression for a violation of the law of war by any person or persons, military or civilian”);
LEVIE, supra note 8, at 386-87.
breaches” under the Geneva Conventions, giving rise to both personal liability and
state responsibility attributable to the United States.
U.S. Federal Law. U.S. contractor personnel and other U.S. civilian
employees in Iraq are subject to prosecution in U.S. courts under a number of
circumstances. Jurisdiction of federal statutes extends to U.S. nationals at U.S.77
facilities overseas. In addition, many federal statutes prescribe criminal sanctions
for offenses committed by or against U.S. nationals overseas,78 including the War79
Crimes Act of 1996. The federal prohibition on torture, 18 U.S.C. § 2340 et seq,
applies to acts outside the United States regardless of the nationality of the
perpetrator (non-U.S. nationals need only be “found” in the United States to be
Additionally, persons who are “employed by or accompanying the armed forces”
overseas may be prosecuted under the Military Extraterritorial Jurisdiction Act
(MEJA) of 200081 for any offense that would be punishable by imprisonment for
more than one year if committed within the special maritime and territorial
jurisdiction of the United States. (18 U.S.C. § 3267). Persons “[e]mployed by the
armed forces” is defined to include civilian employees of the Department of Defense
(DoD) as well as DoD contractors and their employees (including subcontractors at
any tier). (18 U.S.C. § 3267 (1)(A)). The National Defense Authorization Act for
FY2005 (P.L. 108-375) § 1088, enacted October 28, 2004, expanded the coverage
of MEJA over civilian contractors and employees from other federal agencies and
“any provisional authority” (e.g., the CPA), to the extent that their employment is
related to the support of the DoD mission overseas. The amended language will
clarify that contract employees like those working alongside military personnel in
Abu Ghraib are covered, irrespective of which agency administers the contract in
question. However, it does not cover civilian and contract employees of agencies
engaged in their own operations overseas. Courts may be confronted with the
question of what constitutes a DoD mission overseas, as opposed, perhaps, to a
diplomatic or intelligence mission of some other agency. Whether jurisdiction is
77 18 U.S.C. § 7 (as amended by the § 804 of the USA PATRIOT Act, P.L. 107-56, title
VIII, Oct. 26, 2001, 115 Stat. 377) defines “special maritime and territorial jurisdiction of
the United States” to include:
(A) the premises of United States diplomatic, consular, military or other United
States Government missions or entities in foreign States, including the buildings,
parts of buildings, and land appurtenant or ancillary thereto or used for purposes
of those missions or entities, irrespective of ownership; and
(B) residences in foreign States and the land appurtenant or ancillary thereto,
irrespective of ownership, used for purposes of those missions or entities or used
by United States personnel assigned to those missions or entities.
18 U.S.C. § 7(9) (excluding persons covered by the Military Extraterritorial Jurisdiction
Act, 18 U.S.C. § 3261 (see infra note 65 and accompanying text.)).
78 See CRS Report 94-166, Extraterritorial Application of American Criminal Law, by
79 See supra note 19 and accompanying text.
80 Supra p. 11 (discussion of U.S. implementation of CAT).
81 P.L. 106-523, 114 Stat. 2488 (2000), codified at 18 U.S.C. § 3261 et seq.
expanded retroactively may also become an issue in some cases. In February, 2004,
the Department of Defense issued proposed regulations for implementing MEJA, but
those rules never went into effect and will likely need to be adjusted for the new
scope of the law.82
Military Law. It is less clear whether contract personnel are amenable to
military prosecution under the UCMJ for conduct that took place in Iraq. Article
2(a)(10), UCMJ, extends military jurisdiction, in “time of war,” to “persons serving
with or accompanying an armed force in the field.” As a reflection of the
constitutional issues that arise whenever civilians are tried in military tribunals,83
recognized by the Supreme Court in Reid v. Covert, courts later interpreted the term
“war” to mean only wars declared by Congress.84 However, the Reid Court85
distinguished the case at issue from Madsen v. Kinsella, in which a military spouse
was tried by military commission in occupied Europe, on the basis that
[that case] concerned trials in enemy territory which had been conquered and
held by force of arms and which was being governed at the time by our military
forces. In such areas the Army commander can establish military or civilian
commissions as an arm of the occupation to try everyone in the occupied area,86
whether they are connected with Army or not.
If Madsen remains valid, if and for so long as the United States is considered an
“occupying power” in Iraq, it may be acceptable under the Constitution to subject
contractors there to military jurisdiction. Additionally, if offenses by contract
personnel can be characterized as violations of the law of war, the UCMJ may extend
jurisdiction to try suspects by court-martial87 or by military commission.88 However,
82 69 Fed. Reg. 4,890 (Feb. 2, 2004).
83 See Reid v. Covert, 354 U.S. 1 (1957) (overturning two cases involving civilian spouses
convicted at courts-martial, pursuant UCMJ Art. 2(10) as “persons accompanying the armed
forces,” for the murders of their military spouses at overseas bases); McElroy v.
Guagliardo, 361 U.S. 281 (1960) (civilian employee could not be tried by court-martial for
84 See Robb v. U. S., 456 F.2d 768 (Ct.Cl. 1972); U.S. v. Averette, 41 C.M.R. 363 (1970);
see also Latney v. Ignatious, 416 F.2d 821 (D.C. Cir. 1969)(finding that even if the Vietnam
conflict constituted a “war” within the meaning of the UCMJ, conduct must be intimately
connected to military in order for jurisdiction under Art. 2(10) to apply).
85 343 U.S. 341 (1952)(upholding the trial of civilian by military commission for non-
military crime in occupied territory). Jurisdiction in Madsen was found in Article 15 of the
Articles of War (substantially identical to 10 U.S.C. § 821, infra note 71). 343 U.S. at 350-
55 (holding that the “law of war” includes “that part of the law of nations which defines the
powers and duties of belligerent powers occupying enemy territory pending the
establishment of civil government”).
86 354 U.S. at 35, & n 10.
87 See 10 U.S.C. § 818 (providing jurisdiction over “any person who by the law of war is
subject to trial by military tribunal”).
88 See 10 U.S.C. § 821 (preserving “concurrent jurisdiction with respect to offenders or
the validity of Madsen may have been undermined for the purposes of operations in
Iraq by later case law requiring a congressional declaration of war and otherwise
limiting military jurisdiction over civilians.89
Iraqi Government Authority over Contractors. Contractors to U.S.
agencies or any of the multinational forces or diplomatic entities in Iraq operate
under the law of the interim government in Iraq, which includes orders issued by the
CPA prior to the hand-over of sovereignty to the Iraqi Interim Government.90 Under
CPA Order Number 17, as revised June 27, 2004, contractors are exempt from Iraqi
laws for acts related to their contracts.91 That order provides that “[c]ontractors shall
not be subject to Iraqi laws or regulations in matters relating to the terms and
conditions of their Contracts. . . ,” but that they are subject to all relevant regulations
with respect to any other business they conduct in Iraq (section 4(2)). Contractors are
also immune from Iraqi legal processes for acts performed under the contracts
(section 4(3)). Iraqi legal processes could commence against contract personnel
without the written permission of the Sending State, but that State’s certification as
to whether conduct at issue in a legal proceeding was related to the terms and
conditions of the relevant contract serves as conclusive evidence of that fact in Iraqi
courts (section 4(7)).
In addition to criminal punishment of those responsible for torture, there may
also be a legal right to compensation for the victims. This section briefly summarizes
international law regarding the right to compensation in cases involving breaches of
international law, followed by a discussion of available means under U.S. law.
offenses that by statute or by the law of war may be tried by military commissions, provost
courts, or other military tribunals”); cf Ex Parte Quirin, 317 U.S. 1 (1942).
89 See, e.g., Duncan v. Kahanamoku, 327 U.S. 304 (1945)(military tribunal had no
jurisdiction over civilians for non-military crimes where martial law was in operation but
courts could function); United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955) (holding
that an honorably discharged former soldier could not be tried by court-martial for a crime
he allegedly committed while stationed overseas); Reid v. Covert, 354 U.S. 1 (1957) (setting
aside the military conviction of a civilian dependant of a service member stationed
overseas); Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) (voiding the
conviction by court-martial of a military wife charged with involuntary manslaughter);
McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960)(holding that civilian
employees of the military may not be tried by court-martial, even for crimes committed
90 The Coalition Provisional Authority dissolved at the end of June, 2004, but orders issued
by the CPA remain in place unless rescinded by the Iraqi Transitional Government, as
modified by CPA Order 100. For more information on the transfer of sovereignty, see CRS
Report RS21820, Iraq: Transition to Sovereignty, by Kenneth Katzman and Jennifer Elsea.
91 Order 17, Status of the CPA, MNFI, Certain Missions and Personnel in Iraq, 27 June
Status_of_Coalition__Rev__with_Annex_A.pdf] (last visited Oct. 4, 2004).
Conduct that violates international obligations is attributable to a State if it is
committed by the government of the State or any of its political subdivisions, or by
any official, employee, or agent operating within the scope of authority of any of
these governments, or under color of such authority.92 Principles of State
responsibility require a State in breach of an obligation to another State or
international organization, without justification or excuse under international law, to
terminate the violation and provide redress.93
The matter of reparations for war crimes is ordinarily something that is
negotiated through a peace treaty at the end of the armed conflict. Reparations may
take the form of monetary compensation for the damages caused by the violation, but
they may also take such forms as restitution in kind, restoration of the status quo
ante, or specific performance of an undertaking.94 It is possible that the respective
governments may reach an agreement for some type of reparation, and yet the
individual victims are not guaranteed any compensation at all.95
The primary remedy for a breach of State responsibility with respect to the
maltreatment of detainees appears to be the payment of reparations. The Red Cross
commentary on the GPW states that
[c]ompensation for damage resulting from the unlawful act, although not
stipulated explicitly, is undoubtedly implied by the authors of Article 12.
Consequently, a State which bears responsibility for a violation of the
Convention is in duty bound to make good the damage caused, either by restoring
everything to the former condition . . . or by paying damages, the choice resting,
as a general rule, with the injured party. In many cases, however, reparation will
have to be limited to the payment of damages, when the nature of the prejudice
caused makes restoration impossible. An example of this would be the physical96
and mental injury suffered by prisoners . . . .
Even though compensation may be contemplated, however, an individual who is
harmed may not be able to seek redress directly, particularly when, as under the
Convention, no private right of action expressly is granted. Under traditional
international practice, the State of an individual’s nationality is regarded as having
suffered the harm when an international agreement is breached, and it is up to that
State alone to press for reparation. However, international law may be changing in
that regard. For example, the Rome Statute of the International Criminal Court
92 AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF
THE UNITED STATES, Vol II (1987), § 207.
93 Id. at § 901, comment a.
94 Id. at comment d.
95 Cf Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1523 (D.C. Cir.
1984)(“Final settlement between sovereigns does release the defendant sovereign from
96 See COMMENTARY, supra note 13, at 130.
provides for the compensation of victims of international crimes out of a trust fund.97
In the aftermath of Iraq’s occupation of Kuwait, the U.N. Security Council set up a
compensation commission to adjudicate claims submitted by victims of war crimes
through their respective home countries.
U.S. Provisions for Compensation
As a general rule, the United States may not be sued in its own courts unless it
has waived its sovereign immunity.98 Congress has provided a waiver for certain
types of claims through the Federal Tort Claims Act (FTCA),99 but it does not include
tort claims involving injuries that occurred overseas.100 Victims may also be able to
sue for damages in U.S. courts, for example, under the Alien Tort Statute or the
Torture Victim Protection Act.101 Congress may provide for compensation without
waiving U.S. sovereign immunity through administrative procedures, and has done
so in several instances.102
The Military Claims Act. Persons injured by U.S. military officials may seek
compensation under the Military Claims Act, 10 U.S.C. § 2733. The MCA
compensates for personal injury, death, or property damage caused by military
personnel or civilian employees acting within the scope of their employment or by
“noncombatant activities of a peculiarly military nature.” The Secretaries of the
military departments prescribe regulations setting forth the circumstances under
which claims will be paid.103 A claimant may appeal to the JAG, but there is no right
to sue the United States in federal court if the military department involved denies
97 See Rome Statute of the International Criminal Court art. 79, U.N. Doc. A/CONF.183/9
(1998)(“Rome Statute”). The United States is not a party to the Rome Statute, but
participated in its drafting. See CRS Report RL31437, International Criminal Court:
Overview and Selected Legal Issues, by Jennifer Elsea. The inclusion of a provision for
compensation arguably shows some evidence of an emerging individual right to redress.
98 Federal Housing Administration v. Burr, 309 U.S. 242, 244 (1940).
99 28 U.S.C. §§ 1346(b), 2671-2680. For an overview, see CRS Report 95-717, Federal
Tort Claims Act: Current Legislative and Judicial Issues, by Henry Cohen.
100 28 U.S.C. § 2680(k); Sosa v. Alvarez-Machain, __ U.S. __ ( 2004)( holding that “the
FTCA’s foreign country exception bars all claims based on any injury suffered in a foreign
country, regardless of where the tortious act or omission occurred.”).
101 See supra note 43; see, e.g. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). Because
neither of these statutes waives U.S. sovereign immunity, lawsuits against the U.S.
government or its employees would not likely succeed under them. However, personnel
who cause injuries but are found to be acting outside the scope of their employment may be
held personally liable. Whether a contract employee is considered a “federal employee”
depends on the nature of the government’s control over such contract employees.
102 Civil Liberties Act of 1988, P.L. 100-383, 102 Stat. 903 (codified as amended at 50
U.S.C. App. §§1989-1989d (2000))(compensation for Japanese-American WWII internees);
see Eric A. Posner and Adrian Vermeule, Reparations for Slavery and Other Historical
Injustices, 103 Colum. L. Rev. 689 (2003)(listing other examples).
103 The Army regulations may be found at 32 CFR part 536.
Compensation under the MCA is generally limited to $100,000. Claims for
personal injury or death may include items such as medical expenses, lost
earnings, diminished earning capacity, pain and suffering, and permanent disability.
Ordinarily, the law of the locale where the injuries occurred is applied. Enemy
nationals, as well as nationals of an ally of a country at war with the United States,
are ineligible for relief under the MCA unless the individual claimant is
determined to be friendly to the United States.
The Foreign Claims Act. Inhabitants of foreign countries who are injured
by military personnel or incidental to noncombat activities of the U.S. military may
be compensated for injury, death, or property damage under the Foreign Claims Act
(FCA), 10 U.S.C. § 2734-2736. The Department of Defense has assigned
single-service responsibility for processing claims in Iraq to the Army. All FCA
claims are decided by a Foreign Claims Commission, ordinarily consisting of one or
three military attorneys appointed by the Senior Judge Advocate in a foreign area of
operations.104 Like the MCA, the FCA relies on local law to determine whether
claims are compensable and what level of compensation is appropriate. Where the
claimant is a national of a country at war with the United States, compensation is
available only if the claimant is determined by the commission or by the local
commander to be friendly to the United States. Relief provided under the FCA is
considered to be ex gratia and does not preclude a recipient from pursuing a court
action, but the FCA does not constitute a waiver of sovereign immunity and does not
provide a cause of action in court. The United States may pursue subrogation against
individual U.S. tortfeasors in order to recoup funds expended.
Role of Congress
Congress has the authority under the Constitution to make rules regarding
capture on land or water,105 to define and punish violations of international law,106
and to make regulations to govern the armed forces.107 However, it has not
previously taken a very active rule in prescribing the treatment of prisoners of war
and civilian internees.108 The following sections summarize the congressional
reaction to the Abu Ghraib scandal and legislative proposals to prevent a recurrence.
104 AR 27-20, chapter 10.
105 U.S. CONST. art. I, § 8, cl. 11.
106 Id. art. I, § 8, cl. 10.
107 Id. art. I, § 8, cl. 1.
108 Congress has made some violations of the Geneva Conventions punishable under the War
Crimes Act of 1996, 18 U.S.C. §§ 2441 et seq. See supra note 32 and accompanying text.
Congress has provided for the internment of alien enemies on U.S. territory, see Enemy
Alien Act, 50 U.S.C. § 21 et seq., but there is no statute authorizing detention of prisoners
of war or civilians in occupied territory.
Oversight and Resolutions — 108th Congress
The 108th Congress took up issues related to the Abu Ghraib scandal and the
treatment of detainees in numerous committee hearings, and reaffirmed that torture
is unlawful. Section 9011 of the Department of Defense Appropriations Act of 2005,
P.L. 108-287, states that
Congress, consistent with international and United States law, reaffirms that
torture of prisoners of war and detainees is illegal and does not reflect the
policies of the United States Government or the values of the people of the
Also during the 108th Congress, the House of Representatives and the Senate
each passed resolutions condemning the abuses at Abu Ghraib and calling for
investigations.109 Several House resolutions of inquiry that would have called for the
Administration to turn over pictures, film and documents related to the abuse of Iraqi
prisoners were reported adversely out of committee and never reached a vote by the110
Hearings. At least five committees — the Senate Armed Services Committee,
Senate Select Committee on Intelligence, House Select Committee on Intelligence,
House Armed Services Committee, and Senate Foreign Relations Committee —
held hearings during the 108th Congress where the Abu Ghraib scandal was
discussed. In a series of hearings held in May, 2004, the Armed Services
Committees of both houses took testimony from numerous Department of Defense
officials, including Secretary of Defense Donald Rumsfeld, General Richard B.
Myers, Chairman, Joint Chiefs of Staff; Acting Secretary of the Army Les Brownlee;
U.S. Army Chief of Staff General Peter J. Schoomaker; and CENTCOM Deputy
Commander Lieutenant General Lance L. Smith. The Committees also interviewed
General Taguba, who investigated the MP unit at Abu Ghraib, and Stephen
Cambone, Undersecretary of Defense for Intelligence, as well as other intelligence
officials. The Senate Armed Services Committee took testimony from CENTCOM
Commander General John Abizaid, Lieutenant General Ricardo Sanchez,
Commander of the Multinational Force-Iraq; Major General Geoffrey Miller, Deputy
Commander for Detainee Operations in Iraq, and Colonel Marc Warren, Army Judge
In July, 2004, the Senate Armed Services Committee interviewed Lieutenant
General Paul Mikolashek, Army Inspector General, about the findings of his
investigation into the matter. On September 9, the Senate and House Armed Services
Committee held hearings to receive testimony from general officers who conducted111
a formal investigation into the allegations of abuse, and from James Schlesinger
109 H.Res. 627; S.Res. 356.
110 H.Rept. 108-547 (2004) (H.Res. 640);H.Rept. 108-631 (2004)(H.Res. 699); H.Rept. 108-
111 See Fay Report, supra note 21.
and Harold Brown, appointed by the Secretary of Defense to head the Independent
Panel to Review DOD Detention Operations.112
Legislation — 108th Congress
The following laws enacted by the 108th Congress address the treatment of
prisoners in Iraq.
National Defense Authorization Act for FY2005, P.L. 108-375. In
addition to the jurisdictional modifications described above, Congress addressed the
detention issue in the Defense Authorization Act, which was signed into law by the
President October 28, 2004. The Senate had included a measure in its version that
would have applied to CIA interrogators, as well as intelligence personnel from other113
agencies, the same rules that apply to the military, but the Administration objected
that the provision “would have provided legal protections to foreign prisoners to114
which they are not now entitled,” and the measure was stripped out in
The National Defense Authorization Act does not specifically prohibit torture
or cruel, inhuman or degrading treatment of detainees, as the Senate bill would have
provided.116 Instead, it sets forth the sense of the Congress that “the Constitution,
laws, and treaties of the United States and the applicable guidance and regulations
of the United States Government prohibit the torture or cruel, inhuman, or degrading
treatment of foreign prisoners held in custody by the United States,” and that no
detainee shall be subject to such treatment.117 Section 1091 states that the policy of
the United States is to ensure that no detainee in its custody is subjected to the
treatment described above, to promptly investigate and prosecute instances of abuse,
to ensure that U.S. personnel understand the applicable standards, to accord detainees
whose status is in doubt the protection for prisoners of war under the Geneva
Conventions, and to “expeditiously process and, if appropriate, prosecute detainees
112 The Final Report of the Independent Panel to Review Department of Defense Detention
Operations is available at [http://www.defenselink.mil/news/Aug2004/d20040824final
113 See S. 2845 (Public Print), 108th Cong., § 1014.
114 See Letter from Condaleeza Rice and Josh Bolton, to Representative Hoekstra and
Senator Collins (Oct. 18, 2004), available at
[http://www.fas.org/irp/news/2004/10/wh101804.pdf](last visited May 18, 2005).
115 Douglas Jehl and David Johnston, White House Fought New Curbs On Interrogations,
Officials Say, NY TIMES, Jan. 13, 2005, at 1.
116 H.R. 4200 (engrossed Senate version) § 1047 would have provided that “[n]o person in
the custody or under the physical control of the United States shall be subject to torture or
cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution,
laws, or treaties of the United States.” The enacted version provides nearly identical
language, but includes the statement as part of a “sense of the Congress,” which may be
viewed as merely hortatory and not binding.
117 National Defense Authorization Act for FY2005 § 1091, P.L. 108-375.
in the custody of the United States, including those in the custody of the United
States Armed Forces at Guantanamo Bay, Cuba.”
Required Regulations. Section 1092 requires the military to implement,
within 150 days of the passage of the act, a policy to ensure detainees are treated in
accordance with the obligations set forth in section 1091. The required DOD
regulations are to contain, at a minimum, the following elements:
(1) Commanding officers of detention and interrogation facilities must educate
their troops, including military personnel and civilian contractors, about the
Geneva Convention Relative to the Treatment of Prisoners of War.
(2) DoD contracts in which civilian contract personnel will be required to
interact with detainees must include a requirement that such personnel have
received training regarding the international obligations and applicable U.S. law.
(3) Detainees must be informed in their own languages of their rights under the
(4) The Department of Defense must provide for periodic inspections, both
announced and unannounced, of detention and interrogation facilities.
(5) Guard-detainee contact must be same-sex except under exigent
The first two requirements of section 1092 codify the GPW, art. 127
requirements that States Parties provide for education in the requirements of the
Geneva Conventions, except that it is limited to military personnel and civilian
contractors working at detention and interrogation facilities operated under DOD.
The third requirement also corresponds to an obligation under the GPW.118 With
respect to the fourth requirement, the GPW does not specifically require inspections
by the military chain of command. However, subparagraph 3 would provide a means
to satisfy the obligation to prevent abuse. The fifth requirement also echoes an
obligation under the GPW, at least as the Convention applies to women prisoners.119
Reporting Requirements. Section 1093 of PL 108-375 requires DOD to
submit copies of regulations, policies and orders prescribed under section 1092 to the
armed services committees of both houses within 30 days after their implementation,
along with a report setting forth steps taken to implement section 1092 as of that
time.120 Section 1093 also requires DOD to submit an annual report giving notice of
118 See GPW art. 41(requiring text of the GPW, as well as its Annexes and any other special
agreement reached by belligerent parties, and all regulations related to the conduct of
prisoner of war, to be posted, in the prisoners’ own language, in places in the camp where
all prisoners can read them).
119 See id. art. 97 (“Women prisoners shall be confined separately and under the supervision
of women.”). No specific language precludes men from being in custody under female
supervision, but it may have been presumed that most guards would be men.
120 The Army announced new procedures for handling detainees in all theaters of operation
any investigation into any violation of laws regarding the treatment of detainees, as
long as ongoing criminal or administrative actions are not compromised through such
notice. Further, the report will contain aggregate data relating to the detention
operations of the Department of Defense, including how many persons are held and
in what status, and how many have been transferred to the jurisdiction of other
Section 1206 requires DOD to submit a report on contractors supporting
deployed forces and reconstruction efforts in Iraq, including a description of the
overall chain of command and oversight mechanisms to ensure adequate command
and supervision and an explanation of their legal status after the transfer of
sovereignty in Iraq. The report is to be submitted within 180 days of the enactment
of P.L. 108-375, and will include a description of sanctions that may be imposed in
case of misconduct, a list of actions taken against contractor personnel as of the date
of the initiation of military operations in Iraq, May 1, 2003.
Prohibition on Funds to Justify Torture. Congress included in the
Consolidated Appropriations Act for FY2005, P.L. 108-447, a prohibition on the use
of funds by the Justice Department to “be used in any way to support or justify the
use of torture by any official or contract employee of the United States Government.”
Issues for the 109th Congress
As investigations continue into U.S. detention operations outside the United
States, calls for further congressional action and for more rigorous investigation will
Hearings. The Senate Judiciary Committee held hearings June 15, 2005, on
the subject of Detainees. The Senate Armed Services Committee, Subcommittee on
Personnel, held hearings July 14, 2005 on Detention Policies and Military Justice.
On that same day, the House Permanent Select Committee on Intelligence held a
hearing entitled “Critical Need for Interrogation in the Global War on Terror.” The
Armed Services Committee of the House of Representatives held hearings June 29,
2005, entitled “Detainee Operations at Guantanamo Bay.” Detainee operations were
also discussed during nominations hearings, including the nomination of Attorney
General Alberto Gonzales and the nomination of General Peter Pace for the position
of Chairman of the Joint Chiefs of Staff.
in February, 2005. See Kathleen T. Rhem, DefenseLINK News: Army Improving
Procedures for Handling Detainees, AMERICAN FORCES PRESS SERVICE, Feb. 24, 2005,
available at [http://www.defenselink.mil/news/Feb2005/n02242005_2005022407.html] (last
visited Sep. 25, 2005).
121 See, e.g., Human Rights Watch, World Report: 2005 (Jan. 13, 2005)(urging the creation
of a fully “independent investigative commission” to investigate U.S. detention and
interrogation operations), available at [http://hrw.org/wr2k5/](last visited Jan. 14, 2005).
Legislation. The Emergency Supplemental Appropriations Act for Defense,
the Global War on Terror, and Tsunami Relief, 2005 (P.L. 109-13), enacted into law
May 11, 2005, contains a prohibition on the use of funds appropriated by that act “to
subject any person in the custody or under the physical control of the United States
to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited
by the Constitution, laws, or treaties of the United States.” (Sec. 1031). The
prohibited treatment is defined to coincide with the statutory definition of torture and
the Senate declaration that accompanied the ratification of CAT, which defined
“cruel, unusual, and inhumane treatment or punishment” as actions that are
prohibited by the Fifth, Eighth or Fourteenth Amendments to the Constitution.
However, with respect to cruel, unusual and inhumane treatment, the Administration
has taken the position that neither the Constitution nor CAT, as implemented by the122
United States, applies to aliens held overseas. It is thus unclear whether section
Two bills would create an independent commission to investigate detainee abuse
(H.R. 3003, S. 12 § 224). The House of Representatives passed a provision as part
of its Defense Authorization bill for FY2006, H.R. 2863, that would “reaffirm that
torture of prisoners of war and detainees is illegal and does not reflect the policies of
the United States Government or the values of the people of the United States.” (Sec.
H.R. 112 would require detainee interrogations, whether conducted by military
or civilian personnel (including contractors), to be videotaped. The resulting
videotapes could be classified, but would be available to any party in any military or
civilian criminal proceeding, if relevant, under seal if appropriate. The bill would
also require that immediate and unfettered access to detainees be accorded to
representatives of the International Committee of the Red Cross, the UN High
Commissioner for Human Rights, and the UN Special Rapporteur on Torture.
The Senate Defense Authorization bill (S. 1042) contains a section that would
require the Secretary of Defense to establish a DoD policy with respect to the role of
military medical and behavioral science personnel in the interrogation of detainees.
(Sec. 1071). The Senate is also considering amendments to that bill to require the
Defense Department to adhere to the Army’s interrogation manual (SA 1557), to
prohibit cruel, inhumane and degrading treatment of prisoners in U.S. custody no
matter where they are held (SA 1556), to authorize the Combatant Status Review
Tribunals to determine detainees’ status (SA 1505), and to establish an independent123
commission to investigate detainee abuse (SA 1494). After the White House
reportedly threatened to veto the bill if it includes measures that would impede the124
President’s ability to conduct the war on terrorism, the bill was returned to
committee and further action on it was postponed.
122 See Letter from Assistant Attorney General William Moschella to Senator Patrick Leahy,
April 4, 2005, available at [http://www.scotusblog.com/](last visited May 18, 2005).
123 151 CONG. REC. S8833 et seq. (daily ed. July 25, 2005).
124 Liz Sidoti, Senators Press Bill On Detainee Rights, PHILADELPHIA INQUIRER, July 26,
The Senate version of the Defense Department FY2006 Appropriations bill
(H.R. 2863) contains a provision, introduced as an amendment by Senator McCain,
that would prohibit the “cruel, inhuman and degrading treatment” of detainees.125
Section 8154 of the bill, as amended, would limit interrogation techniques used by
the Department of Defense to those defined in U.S. Army Field Manual (FM) 34-52,
Intelligence Interrogation126 (“FM 34-52”). This requirement would not apply with
respect to persons detained under criminal or immigration laws. The provision
would not restrict DoD’s authority to revise the regulation, but would require that
DoD prescribe uniform interrogation procedures for all detainees in DoD custody
who are undergoing interrogation for intelligence purposes.
Section 8155 of H.R. 2863, as passed by the Senate, applies more broadly. It
would prohibit the cruel, inhuman, or degrading treatment or punishment of all
persons in U.S. custody, regardless of the agency in whose custody the person is held
and without geographical limitation. The prohibited treatment is defined as that
which would violate the Fifth, Eighth, and Fourteenth Amendments to the U.S.
Constitution, as the Senate has interpreted “cruel, inhuman, or degrading” treatment
banned by the U.N. Convention Against Torture.127 The Administration has
reportedly sought to have the Central Intelligence Agency excepted from this
provision on the grounds that “the president needed maximum flexibility in dealing
with the global war on terrorism.”128 Senator McCain has criticized the
Administration’s proposal, arguing that an express CIA exemption could be
interpreted as tantamount to statutory authority for the CIA to subject detainees to the
treatment his amendment seeks to ban.129
The Targeting Terrorists More Effectively Act of 2005, S. 12, contains a
provision to define U.S. policy with respect to detainees in the war against terrorism.
Section 223 would express the sense of the Congress that, at a minimum, Common
Article 3 of the Geneva Conventions applies to the war. The bill would expressly
mandate that “no detainee shall be subject to torture or cruel, inhumane, or degrading
treatment or punishment that is prohibited by the Constitution, laws, or treaties of the
United States.” It would further state that the policy of the United States is to treat all
foreign persons in the custody of the United States “humanely and in accordance with
the legal obligations under United States law and international law, including the
125 SA 1977 to H.R. 2863 (October 5, 2005)(passed with a roll call vote of 90 yeas and 9
126 DEPARTMENT OF THE ARMY FIELD MANUAL 34-52, INTELLIGENCE INTERROGATION
(1992), available at [http://www4.army.mil/ocpa/reports/ArmyIGDetaineeAbuse
/FM34-52IntelInterrogation.pdf] (Sep. 1, 2004)[hereinafter FM 34-52]. For an analysis of
the approved interrogation procedures, see CRS Report RL32567, Lawfulness of
Interrogation Techniques under the Geneva Conventions, by Jennifer Elsea.
127 See supra page 11; CRS Report RL32438; U.N. Convention Against Torture (CAT):
Overview and Application to Interrogation Techniques, by Michael John Garcia.
128 See Eric Schmitt, Exception Sought in Detainee Abuse Ban, N.Y. TIMES, Oct. 25, 2005,
129 See Charlie Savage, McCain Fights Exception to Torture Ban, BOSTON GLOBE, Oct. 26,
obligations in the Convention Against Torture and in the minimum standards set
forth in the Geneva Conventions.” The bill would further proclaim as U.S. policy
that “all officials of the United States are bound both in wartime and in peacetime by
the legal prohibitions against torture, cruel, inhumane, or degrading treatment set out
in the Constitution, laws, and treaties of the United States.”
It may be argued that it is unnecessary for Congress to provide more express
prohibitions to enforce executive compliance with what already is the law of the
land.130 However, a series of documents released by the executive branch that discuss
legal aspects of the treatment of detainees in the war on terrorism may be read to
suggest that relevant treaties are inoperative with respect to the executive branch
unless Congress has enacted specific implementing legislation, or that the President
has inherent authority to set aside treaty obligations.131 As investigations into alleged
abuse of detainees at Guantanamo Bay Naval Station continue, the issue of detainee
treatment seems likely to continue to draw the attention of Congress.
130 See U.S. CONST. art. VI.
131 See The National Security Archive, The Interrogation Documents: Debating U.S. Policy
and Methods, available at [http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127] (last
visited Jan. 13, 2005). The Justice Department subsequently retracted a memorandum
prepared by the Office of Legal Counsel that discussed the application of 18 USC §§ 2340
et seq. (implementing CAT), and issued a new memorandum on the subject that expressly
declined to address whether the President is bound by the relevant treaties. See Office of
Legal Counsel Memorandum for Deputy Attorney General James B. Comey Re: Legal
Standards Applicable Under 18 U.S.C. §§ 2340 - 2340A (Dec. 30, 2004), available at
[http://www.usdoj.gov/olc/dagmemo.pdf] (last visited Jan. 14, 2005).