The War Crimes Act: Current Issues
Prepared for Members and Committees of Congress
The War Crimes Act of 1996, as amended, makes it a criminal offense to commit certain
violations of the laws of war when such offenses are committed by or against U.S. nationals or
Armed Service members. Among other things, the act prohibits certain violations of Common
Article 3 of the 1949 Geneva Conventions, which sets out minimum standards for the treatment
of detainees in armed conflicts of a non-international character. Common Article 3 prohibits
protected persons from being subjected to violence, outrages upon personal dignity, torture, and
cruel, humiliating, or degrading treatment. In the 2006 case of Hamdan v. Rumsfeld, the Supreme
Court rejected the Bush Administration’s long-standing position that Common Article 3 was
inapplicable to the present armed conflict with Al Qaeda. As a result, questions have arisen
regarding the scope of the War Crimes Act as it relates to violations of Common Article 3 and the
possibility that U.S. personnel may be prosecuted for the pre-Hamdan treatment of Al Qaeda
As amended by the Military Commissions Act of 2006 (MCA, P.L. 109-366), the War Crimes Act
now criminalizes only specified Common Article 3 violations labeled as “grave breaches.”
Previously, any violation of Common Article 3 constituted a criminal offense. This report
discusses current issues related to the War Crimes Act. This report also briefly describes th
legislation introduced in the first session of the 110 Congress that would amend the War Crimes
The War Crimes Act (18 U.S.C. § 2441)...................................................................................1
Implications of Hamdan v. Rumsfeld........................................................................................1
Application of Common Article 3 to Al Qaeda...................................................................2
Scope of Prohibited Conduct under the War Crimes Act Relating to Common
Article 3 Violations..........................................................................................................3
Liability under the War Crimes Act for U.S. Personnel on Account of Pre-
Amendments made by the Military Commissions Act..............................................................4
Post-MCA Developments Regarding the Treatment of Detainees............................................8
Recent Legislative Developments.............................................................................................9
Author Contact Information............................................................................................................9
he 1949 Geneva Conventions proscribe certain conduct by High Contracting Parties 1
toward specified categories of vulnerable persons during armed conflict. High
Contracting Parties are also required to provide effective penal sanctions against any T
person who commits (or orders the commission of) a “grave breach” of one of the Conventions,
which is defined to include the wilful killing, torture or inhuman treatment, and the causing of 2
great suffering or serious injury to body or health of protected persons. Congress approved the
War Crimes Act of 1996 (P.L. 104-192) specifically to implement the Conventions’ penal 3
The War Crimes Act imposes criminal penalties against persons who commit certain offenses
under the laws of war, when those offenses are either committed by or against a U.S. national or
member of the U.S. Armed Forces. The act applies regardless of whether the offense occurs
inside or outside the United States. Offenders are subject to imprisonment for life or any term of
years and may receive the death penalty if their offense results in death to the victim.
At the time of enactment, the War Crimes Act only covered grave breaches of the 1949 Geneva
Conventions. During congressional deliberations, the Departments of State and Defense
suggested the act be crafted to cover additional war crimes, but these recommendations were not 4
immediately followed. However, Congress amended the War Crimes Act the following year to
cover additional war crimes that had been suggested by the State and Defense Departments,
including violations under Article 3 of any of the 1949 Geneva Conventions (Common Article 3).
Common Article 3 is applicable to armed conflicts “not of an international character” and covers
persons taking no active part in hostilities, including those who have laid down their arms or been
incapacitated by capture or injury. Such persons are to be treated humanely and protected from
certain treatment, including “violence to life and person,” “cruel treatment and torture,” and
“outrages upon personal dignity, in particular, humiliating and degrading treatment.”
There has been controversy concerning whether activities by military and intelligence personnel
relating to captured Al Qaeda suspects might give rise to prosecution under the War Crimes Act, 5
particularly in light of the Supreme Court’s ruling in the 2006 case of Hamdan v. Rumsfeld. The
1 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 “Third Geneva Convention”]; Geneva Convention Relative to the Protection of Civilian Persons in
Time of War, 6 U.S.T. 3516. All four Conventions entered into force for the United States on February 2, 1956.
2 E.g., Third Geneva Convention, supra footnote 1, at Articles 129-130.
3 When the Conventions were ratified in 1955, the Senate Foreign Relations Committee believed that the obligations
imposed by the Conventions’ “grave breach” provisions were met by existing federal law and no further legislation was
required. H.Rept. 104-698, at 3-4 (1996) (quoting Sen. Exec. Rep. No. 9, at 27 (1955)). However, in 1996 the House
Committee on the Judiciary found that in some cases the United States was legally unable to prosecute persons for the
commission of grave breaches of the Conventions, including when members of the armed forces were found to have
committed war crimes only after their military discharge. Id. at 5.
4 Id. at 12-16.
5 Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).
following sections provide relevant background and briefly discuss possible implications that the
Court’s ruling may have on issues relating to the War Crimes Act.
At least since early 2002 and lasting until the Court’s ruling in Hamdan, the Bush Administration
had taken the position that the Geneva Conventions did not apply to members of Al Qaeda
captured in the global “war on terror.” Specifically, the Administration argued that the
Conventions were applicable to international armed conflicts between High Contracting Parties
and States that complied with Convention provisions, and therefore do not cover non-State actors
such as Al Qaeda. The Administration further claimed that the conflict with Al Qaeda is
international in scope, and Common Article 3 accordingly was inapplicable to the conflict 6
because it only covers armed conflicts “not of an international nature.”
The issue in Hamdan primarily concerned military tribunals convened by Presidential order to try
detainees for violations of the laws of war. The Court held that such tribunals did not comply with
the Uniform Code of Military Justice or the laws of war, including the Geneva Conventions.
However, the Court’s interpretation of Common Article 3 had broader implications for U.S.
policy towards captured Al Qaeda suspects. The Court rejected the Administration’s interpretation
of Common Article 3 as not covering Al Qaeda members, concluding that the provision affords
“some minimal protection, falling short of full protection under the Conventions, to [any] 7
individuals ... who are involved in a conflict in the territory of a signatory.” In the aftermath of
the Court’s ruling, the Department of Defense issued new treatment guidelines concerning
military detainees (including Al Qaeda members) that required, at minimum, application of the 8
standards articulated by Common Article 3. Subsequently, fourteen high-level Al Qaeda
operatives who had been held abroad by the CIA and subjected to aggressive interrogation 9
techniques were transferred to DOD custody in Guantanamo Bay, Cuba.
6 See White House Memorandum, Humane Treatment of Taliban and Al Qaeda Detainees (February 7, 2002), available
7 Hamdan, 126 S.Ct. at 2796 (internal quotations omitted). In interpreting Common Article 3 as ensuring de minimis
protections of Al Qaeda members captured by the United States in Afghanistan, the Court noted that the official
commentaries accompanying Common Article 3 made clear that “the scope of the Article must be as wide as possible.”
Id. (quoting Commentary: Geneva Convention Relative to the Treatment of Prisoners of War 36 (1960)). In dissent,
Justice Thomas (joined by Justice Scalia) disputed this reading, arguing that the relevant commentary indicated that the
purpose of Common Article 3 was principally to furnish protections to persons involved in a civil war, rather than
entities of international scope such as Al Qaeda. Id. at 2846 (Thomas, J., dissenting). However, the Court appeared to
leave unresolved whether the Geneva Conventions apply with respect to Al Qaeda suspects captured in places where no
armed conflict is occurring. For background on the Hamdan decision, see CRS Report RS22466, Hamdan v. Rumsfeld:
Military Commissions in the “Global War on Terrorism”, by Jennifer K. Elsea.
8 Dept. of Defense Detainee Directive, Definitions, Treatment Policy, and Compliance with Laws of War, September 5,
2006, available at http://news.findlaw.com/hdocs/docs/dod/detainee90506directive.html.
9 Presidential Address Creation of Military Commissions to Try Suspected Terrorists, September 6, 2006, available at
http://www.whitehouse.gov/news/releases/2006/09/20060906-3.html [hereinafter “Presidential Address”].
The United States has apparently never prosecuted a person under the War Crimes Act.10 Perhaps
as a result, there is some question concerning the act’s scope. In the aftermath of the Court’s
ruling in Hamdan, some suggested that the War Crimes Act be amended to specify whether
certain forms of treatment or interrogation constitute a punishable offense. They argued that the
scope of the War Crimes Act was ambiguous, particularly as it related to offenses concerning
violations of Common Article 3. In a September 2006 address, President Bush suggested that
some provisions of Common Article 3 provided U.S. personnel with inadequate notice as to what
interrogation methods could permissibly be used against detained Al Qaeda suspects, and
requested legislation listing “specific, recognizable offenses that would be considered crimes 11
under the War Crimes Act.” On the other hand, some argued that amending the War Crimes Act
to cover specific acts would overly restrict the act’s scope, making certain unspecified conduct
legally permissible even though it was as severe as conduct that was expressly prohibited.
Although some types of conduct prohibited by Common Article 3 are easily recognizable (e.g.,
murder, mutilation, the taking of hostages), it might not always be obvious whether conduct
constitutes impermissible “torture,” “cruel treatment,” or “outrages upon personal dignity, in
particular humiliating and degrading treatment.” For discussion of U.S. and international
jurisprudence and agency interpretations concerning the scope of these terms, particularly as they
relate to interrogation techniques, see CRS Report RL32567, Lawfulness of Interrogation
Techniques under the Geneva Conventions, by Jennifer K. Elsea; CRS Report RL33655,
Interrogation of Detainees: Overview of the McCain Amendment, by Michael John Garcia; and
CRS Report RL32438, U.N. Convention Against Torture (CAT): Overview and Application to
Interrogation Techniques, by Michael John Garcia.
Prior to the Court’s ruling in Hamdan, the Bush Administration did not apply Common Article 3
protections to captured Al Qaeda agents. In some cases, such persons were allegedly subject to
harsh treatment, especially in the context of interrogation, that might not have complied with
Common Article 3 requirements. As a result, some have raised questions as to whether U.S.
personnel might be criminally liable under the War Crimes Act for the pre-Hamdan treatment of
some Al Qaeda detainees.
Although not immune from prosecution, U.S. personnel who could be charged with violating the
War Crimes Act would have several possible defenses to criminal liability, so long as their
activities were conducted with the authorization of the Administration and under the reasonable
(though mistaken) belief that their actions were lawful. Section 1004(a) of the Detainee Treatment
Act of 2005 (DTA, P.L. 109-148), enacted several months prior to the Hamdan decision, provides
10 White House Press Release, Myth/Fact: The Administration’s Legislation to Create Military Commissions,
September 6, 2006; http://www.whitehouse.gov/news/releases/2006/09/20060906-5.html.
11 Presidential Address, supra footnote 9.
In any civil action or criminal prosecution against an officer, employee, member of the
Armed Forces, or other agent of the United States Government who is a United States
person, arising out of the officer, employee, member of the Armed Forces, or other agent’s
engaging in specific operational practices, that involve detention and interrogation of aliens
who the President or his designees have determined are believed to be engaged in or
associated with international terrorist activity that poses a serious, continuing threat to the
United States ... and that were officially authorized and determined to be lawful at the time
that they were conducted, it shall be a defense that ... [the] agent did not know that the
practices were unlawful and a person of ordinary sense and understanding would not know
the practices were unlawful. Good faith reliance on advice of counsel should be an important
factor, among others, to consider in assessing whether a person of ordinary sense and
understanding would have known the practices to be unlawful. Nothing in this section shall
be construed to limit or extinguish any defense or protection otherwise available ... or to 12
provide immunity from prosecution for any criminal offense by the proper authorities.
In addition to this statutory defense, a number of other legal defenses could be raised by U.S.
personnel charged with War Crimes Act offenses based on conduct that had been authorized,
assuming the defendants acted with government sanction and/or had been erroneously informed 13
by responsible authorities that their conduct was legal. Similar defenses may exist for military 14
personnel in courts martial proceedings.
In response to the Court’s ruling in Hamdan, Congress passed the Military Commissions Act of
Military Commissions Act (MCA) made several amendments to the War Crimes Act.
12 Prior to the enactment of the Military Commissions Act of 2006 (P.L. 109-366), it was arguably unclear whether a
reviewing court would have interpreted this defense to apply retroactively to conduct occurring before the DTA’s
enactment in December 2005. The Military Commissions Act specified that this defense was available to U.S. persons
charged with an offense under the War Crimes Act on account of conduct committed between September 11, 2001 and
the enactment of the DTA. P.L. 109-366, § 8(b) (2006).
13 Although “mistake of law” defenses are generally rejected, such defenses have been recognized by courts in certain
cases where defendants have acted with government sanction or after being erroneously informed by responsible
authorities that their conduct was legal. These defenses can be divided into three overlapping categories: (1) defense of
entrapment by estoppel, available when a defendant is informed by a government official that certain conduct is legal,
and thereafter commits what would otherwise constitute a criminal offense in reasonable reliance of this representation;
(2) defense of public authority, available when a defendant reasonably relies on the authority of a government official
to authorize otherwise illegal conduct, and the official has actual authority to sanction the defendant to perform such
conduct; and (3) defense of apparent public authority, which is recognized by some (but not all) federal circuits, and is
similar to the defense of public authority, except that the official only needs to have apparent authority to sanction the th
defendant’s conduct. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n. 18 (11 Cir. 1994). Unlike the other
defenses, the defense of entrapment by estoppel stems from the due process notions of fairness, rather than from th
common law concerning contract, equity, or agency. United States v. Austin, 915 F.2d 363, 366 (8 Cir. 1990).
14 While ignorance or mistake of law, including general orders or regulations, is not generally available as a defense,
“mistake of law may be a defense when the mistake results from reliance on the decision or pronouncement of an
authorized public official or agency.” Manual for Courts Martial, Rules for Courts-Martial rule 916(l) (discussion). In
the case of war crimes, a defense based on superior orders is available only with respect to direct and specific orders to
commit an act constituting a war crime, and the defendant must demonstrate both the existence of the order and his
sincere and reasonable belief that the order was lawful. See DAVID A. SCHLEUTER, MILITARY CRIMINAL JUSTICE § 2-th
4(F) (5 ed. 1999)(citing United States v. Huet-Vaughn, 43 M.J. 105 (1995)).
15 A number of bills were introduced in the 109th Congress in response to the Hamdan decision, particularly as the
decision related to the establishment of military tribunals to try detainees for violations of the laws of war. Some of
The MCA amended the War Crimes Act provisions concerning Common Article 3 so that only
specified violations would be punishable (as opposed to any Common Article 3 violation, as was
previously the case), including committing, or attempting or conspiring to commit
• torture (defined in a manner similar to that used by the Federal Torture Statute, 18
U.S.C. §§ 2340-2340A, in criminalizing torture);
• cruel treatment;
• the performing of biological experiments;
• mutilation or maiming;
• intentionally causing serious bodily injury;
• sexual assault or abuse; and
• the taking of hostages.
Prior to the enactment of the MCA, there was some debate concerning the scope of cruel 16
treatment that should be subject to criminal penalty under the War Crimes Act. The MCA
defined “cruel treatment” prohibited by the War Crimes Act in a similar manner to the definition
of “torture” contained in the Federal Torture Statute. However, whereas a person is criminally
liable for torture only if he specifically intends to cause severe mental or physical pain and
these bills contained provisions amending the War Crimes Act to more fully protect U.S. personnel from criminal
liability. On September 6, 2006, the Bush Administration submitted draft legislation to Congress authorizing military
commissions to try detainees, amending the War Crimes Act, and specifying conduct complying with Common Article
3. White House Press Release, Fact Sheet: The Administration’s Legislation to Create Military Commissions
(September 6, 2006), available at http://www.whitehouse.gov/news/releases/2006/09/20060906-6.html; Draft
Legislation, Military Commissions Act of 2006, available at http://www.law.georgetown.edu/faculty/nkk/documents/
MilitaryCommissions.pdf. In response, several legislative proposals were thereafter introduced concerning these
matters, including S. 3901, the Military Commissions Act of 2006, introduced by Senator John Warner; S. 3861, the
Bringing Terrorists to Justice Act of 2006 and S. 3886, the Terrorist Tracking, Identification, and Prosecution Act of
2006, both introduced by Senator Bill Frist; and H.R. 6054, the Military Commissions Act of 2006, introduced by
Representative Duncan Hunter. S. 3861, S. 3886, and H.R. 6054 were largely identical to the draft legislation proposed
by the Bush Administration, while S. 3901 somewhat differed. Soon thereafter, three other bills were introduced: S.
3929 and S. 3930, which were both entitled the Military Commissions Act of 2006 and were introduced by Senator
Mitch McConnell; and H.R. 6166, also entitled the Military Commissions Act of 2006, which was introduced by
Representative Duncan Hunter. Reportedly, S. 3929/S. 3930 and H.R. 6166 reflected an agreement reached by the Bush
Administration and certain lawmakers to resolve differences in the approach taken by S. 3901 and that taken by S.
3861, S. 3886, and H.R. 6054. Kate Zernike & Sheryl Gay Stolberg, Differences Settled in Deal Over Detainee
Treatment, NY TIMES, September 23, 2006, at A9. H.R. 6166 was passed by the House on September 27, 2006; S. 3930
was passed by the Senate on September 28, 2006 and by the House on September 29, 2006. Although the provisions of
S. 3929 /S. 3930 and H.R. 6166 were largely similar, there were initially some differences between the bills. However,
the version of S. 3930 that was passed by the Senate (S.Amdt. 5085) and House was amended so that it contained the
same provisions as House-passed H.R. 6166.
16 Several of the bills considered by the 109th Congress would have amended the War Crimes Act to criminalize only
some types of cruel treatment. For example, S. 3861, S. 3886, and H.R. 6054 would only have criminalized cruel
treatment rising to the level of torture, while S. 3901 would have more broadly criminalized cruel treatment that
violated the standards of the McCain Amendment (i.e., cruel, inhuman, or degrading treatment of the kind prohibited
under the Fifth, Eighth, and Fourteenth Amendments). The scope of conduct criminalized by the MCA appears to fall
somewhere between these two standards.
suffering, pursuant to the amendments made the MCA, a person is criminally liable for inflictions 17
of cruel treatment if he generally intended to cause serious mental or physical pain and
suffering to a person protected under Common Article 3.
The MCA further defined “serious mental pain and suffering” and “serious physical pain and
suffering” rising to the level of cruel treatment punishable under the War Crimes Act. “Serious
mental pain and suffering” is defined by reference to the Federal Torture Statute’s definition of
“severe mental pain and suffering” rising to the level of torture. Serious mental pain and suffering
constituting cruel treatment refers to pain and suffering arising from
• the intentional infliction or threatened infliction of severe physical pain or suffering;
• the administration, application, or threatened administration or application of mind-
altering substances or other procedures calculated to disrupt profoundly the senses or the
• the threat of imminent death; or
• the threat that another person will imminently be subjected to death, severe physical
pain or suffering, or the administration or application of mind-altering substances or other
procedures calculated to disrupt profoundly the senses or personality.
The type of mental pain and suffering constituting cruel treatment generally differs from the type
rising to the level of torture, in that it only needs to be of a serious and non-transitory nature
which need not be prolonged, as opposed to being of a severe and prolonged nature. However, the
War Crimes Act, as amended, provides that with respect to conduct occurring before enactment of
the MCA, such pain and suffering must be of a prolonged nature.
As amended by the MCA, the War Crimes Act defines “serious physical pain or suffering”
constituting cruel treatment as actual bodily injury involving
• a substantial risk of death;
• extreme physical pain;
• a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or
• significant loss or impairment of the function of a bodily member, organ, or mental
Under U.S. jurisprudence, most or all of these activities are likely considered to be of such 18
severity as to constitute torture, at least in certain contexts, and could give rise to criminal
17 Specific intent is “the intent to accomplish the precise criminal act that one is later charged with.” General intent
usually “takes the form of recklessness (involving actual awareness of a risk and the culpable taking of that risk) or th
negligence (involving blameworthy inadvertence).” BLACK’S LAW DICTIONARY 813-814 (7 ed. 1999).
18 E.g., Al-Saher v. I.N.S., 268 F.3d 1143 (9th Cir. 2001) (finding that regular, severe beatings and cigarette burns
inflicted upon an Iraqi alien by Iraqi prison guards constituted “torture,” qualifying the alien for relief from removal
under immigration regulations implementing U.N. Convention against Torture requirements); Mehinovic v. Vuckovic,
198 F. Supp. 2d 1322 (N.D. Ga. 2002) (finding that Bosnian-Serb soldier had committed “torture” against non-Serbian
plaintiffs who brought suit under the Torture Victims Protection Act, 28 U.S.C. § 1350 note, as he had subjected them
to acts of brutality including tooth-pulling and severe beatings resulting in broken bones and disfigurement). In a 2002
memorandum interpreting the Federal Torture Statute, the Department of Justice suggested that physical pain
amounting to torture must be “equivalent in intensity to the pain accompanying serious physical injury, such as organ
prosecution if the offender specifically intended to cause such injury. However, such persons may
now also be prosecuted under the War Crimes Act for such conduct (presuming it was directed
against persons protected under Common Article 3), when they caused such injury through 19
reckless or criminally negligent action.
The amendments made by the MCA to the War Crimes Act applied retroactively, possibly
precluding prosecution of personnel for some (but not all) conduct falling under the more general 20
scope of the earlier version of the War Crimes Act. The MCA also provided that the statutory
defense contained in DTA § 1004 covers any criminal prosecution under the War Crimes Act
against U.S. personnel relating to the sanctioned treatment of detainees, if such conduct occurred 21
between September 11, 2001, and December 30, 2005 (i.e., the date the DTA was enacted). It
also amended the DTA to require the federal government to provide or employ counsel and pay
fees related to any prosecution or civil action against U.S. personnel for authorized detention or 22
interrogation activities. The MCA also specified that certain provisions of the War Crimes Act, 23
as amended, are inapplicable with respect to collateral damage or a lawful attack. In addition,
the provision of the War Crimes Act, as amended, relating to hostage taking does not apply to
prisoner exchange during wartime. The MCA also prohibited U.S. courts from using foreign or
international sources to serve as the basis for interpreting the provisions of the War Crimes Act, as 24
amended, defining “grave breaches” of Common Article 3.
Additionally, the MCA prevents persons from invoking the Geneva Conventions as a source of
rights in certain judicial proceedings. The Conventions are prohibited from being invoked in
habeas or civil proceedings to which the United States or a current or former agent of the United 25
States is a party.
failure, impairment of bodily function, or even death.” Memorandum from the Office of Legal Counsel, Department of
Justice, to Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C.
§§ 2340-2340A (August 1, 2002), available at http://www.washingtonpost.com/wp-srv/nation/documents/
dojinterrogationmemo20020801.pdf, at 1. This memorandum was superseded by another DOJ memo in 2004. The 2004
DOJ memorandum rejected the earlier memo’s findings to the extent that it treated severe physical suffering as
identical to severe physical pain, and concluded that “severe physical suffering” may constitute torture under the
federal torture statute even if such suffering does not involve “severe physical pain.” Memorandum from the Office of
Legal Counsel, Department of Justice, to James B. Comey, Deputy Attorney General, Re: Legal Standards Applicable
Under 18 U.S.C. §§ 2340-2340A (December 30, 2004), available at http://www.usdoj.gov/olc/18usc23402340a2.htm,
19 See supra, footnote 17.
20 P.L. 109-366, § 6(b).
21 Id., § 8(b).
22 Id., § 8(a).
23 Id., § 6(b).
24 Id., § 6(a)(2).
25 Id., § 5(a). The Military Commission Act also revoked U.S. courts’ jurisdiction to hear habeas corpus petitions by
aliens in U.S. custody as enemy combatants. Id., § 7. The constitutionality of the MCA’s provisions limiting habeas
jurisdiction and prohibiting the Geneva Conventions from being invoked as a source of rights in judicial proceedings
has been subject to legal challenge. For background and development of recent litigation, see generally CRS Report
RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea and
Kenneth R. Thomas.
The MCA authorizes the President, acting pursuant to an Executive Order published in the
Federal Register, to more restrictively interpret the meaning and application of Common Article 3
of the Geneva Convention, and promulgate administrative regulations implementing this 26
interpretation, so long as these rules do not authorize conduct subject to criminal penalty under
the War Crimes Act.
On July 20, 2007, President Bush signed an Executive Order interpreting Common Article 3, as
applied to the detention and interrogation of certain alien detainees by the CIA, when those aliens
(1) are determined to be members or supporters of Al Qaeda, the Taliban, or associated
organizations; and (2) likely possess information that could assist in detecting or deterring a
terrorist attack against the United States and its allies, or could provide help in locating senior 27
leadership within Al Qaeda or the Taliban. The Executive Order does not specifically authorize
the use of any particular interrogation techniques with respect to detainees, but instead bars any
CIA detention and interrogation program from employing certain practices. Specifically, the
Order prohibits the use of
• torture, as defined under the Federal Torture Statute (18 U.S.C. § 2340);
• cruel, inhuman, and degrading treatment, as defined under the McCain Amendment
and the MCA;
• any activities subject to criminal penalties under the War Crimes Act (e.g., murder,
• other acts of violence serious enough to be considered comparable to the kind
expressly prohibited under the War Crimes Act;
• willful and outrageous acts of personal abuse done for the purpose of humiliating or
degrading the individual in a manner so serious that any reasonable person, considering
the circumstances, would deem the acts to be beyond the bounds of human decency, such
as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the
individual to perform sexual acts or to pose sexually, threatening the individual with
sexual mutilation, or using the individual as a human shield; or
• acts intended to denigrate the religion, religious practices, or religious objects of the
The scope of activity prohibited by the Order is not immediately apparent. Although some types
of conduct barred by the Order are easily recognizable (e.g., murder, rape, the performance of
sexual acts), it is not readily apparent as to what interrogation techniques would fall under the
Order’s prohibition against acts deemed to be “cruel, inhuman, and degrading” or “beyond the
bounds of human decency.” Certain interrogation techniques that have been the subject of
controversy and are expressly prohibited from being used by the military under the most recent
version of the Army Field Manual—waterboarding, hooding, sleep deprivation, or forced
standing for prolonged periods, for example—are not specifically addressed by the Order.
Whether or not such conduct is deemed by the Executive to be barred under the more general
26 P.L. 109-366, § 6(a)(3).
27 The Executive Order may be viewed at http://www.whitehouse.gov/news/releases/2007/07/20070720-4.html.
restrictive language of the Order, such as the restriction on treatment comparable to the kind
expressly prohibited by the War Crimes Act, remains unclear. In a public address on September 7,
2007, CIA Director Michael Hayden stated that “no one ever claimed that the Army Field Manual
exhausted all the lawful tools that America could have to protect itself,” and suggested that
additional interrogation techniques may be employed by the CIA than are permitted to be used by 28
Legislation was introduced in the first session of the 110th Congress to amend the scope of the
War Crimes Act. S. 576, introduced by Senator Dodd on February 13, 2007, and a companion
bill, H.R. 1415, introduced by Representative Nadler on March 8, 2007, would modify MCA and
the War Crimes Act provisions concerning the interrogation of detainees. Among other things,
both bills would amend the War Crimes Act to criminalize treatment of protected persons which
violated McCain Amendment standards, or which denied such persons the right to be tried for war
crimes before a regularly constituted court. The bills would also amend the War Crimes Act to
make it an offense for any person not subject to the Uniform Code of Military Justice (USMJ) to
commit any offense of Common Article 3, if such an offense is listed under the USMJ as
punishable by death or at least one year’s confinement. The two bills would also amend the MCA
by requiring the President to notify Geneva Convention parties that the United States expects U.S.
persons detained in a conflict not of an international character to be treated in a manner consistent
with U.S. interpretation and application of Common Article 3.
Michael John Garcia
28 Transcript of Remarks by Central Intelligence Agency Director Gen. Michael V. Hayden at the Council on Foreign
Relations, September 7, 2007, available at https://www.cia.gov/news-information/speeches-testimony/general-
haydens-remarks-at-the-council-on-foreign-relations.html (rush transcript).