March 2010

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Torture:  Transforming Terrorists into Victims

 

 

By

 

 

Joseph M. Collins

 

Captain, USMC

 

 

 

A paper submitted to the Faculty of the Naval War College in partial satisfaction of the requirements of the Department of Joint Maritime Operations.

 

The contents of this paper reflect my own personal views and are not necessarily endorsed by the Naval War College or the Department of the Navy.


Introduction

The status of captured terrorists held by the United States has become a point of contention over the past eight years.  The use of enhanced interrogation techniques under the Bush Administration is now being classified as torture by the Obama Administration.[1]  Detainees who were to face military tribunals and indefinite detention have been granted civil trials and are solidifying their own release.  With the changing of Presidents and the implementation of a new ideology, there is an increasing danger of the United States setting legal precedence that will cause problems in the future. 

 U.S Military Forces fight terrorists in the “Global War on Terrorism.”  This is a statement which is considered logically sound and factual.  Since September 11, 2001, has it been clearly stated that terrorists are the ‘enemy’ of the United States?  Has the battlefield ever been defined?  What laws classify terrorists as an enemy combatant and what rights do they maintain once captured?  What are the consequences of acts of torture concerning these prisoners?  By trying terrorists in civil court, are they afforded the opportunity to file civil action against members of the Armed Forces who may have tortured them?  In today’s legalistic world, where the United States is subject to numerous laws, is it possible to transform a terrorist into a victim by simply reclassifying enhanced interrogation as torture? 

Discussion

In order to begin a discussion about laws governing the treatment of prisoners of war, one must first define the enemy and the battlefield on which he fights.  On September 20, 2001 President George Bush answers these questions in his joint address to Congress; “The enemy of America is not our many Muslim friends. It is not our many Arab friends. Our enemy is a radical network of terrorists and every government that supports them.”  He goes on to define the battlefield upon which the Global War on Terrorism will be fought; “Our war on terror begins with al Qaeda, but it does not end there.  It will not end until every terrorist group of global reach has been found, stopped and defeated.”[2]  The President’s speech, in effect, classifies all members of terrorist organizations whom have been or will be captured as enemy combatants thus giving them legal protections under some form of law. 

Article 1 of The Hague Convention Number IV indicates that al Qaeda terrorists who attacked the United States on September 11th are not covered under the laws of war.  Article 1 specifies that the laws, rights and duties of war apply to armies, militias and volunteer corps who fulfill the following conditions:  1) to be commanded by a person responsible for his subordinates; and 2) to have a fixed distinctive emblem recognizable at a distance; 3) to carry arms openly; and 4) to conduct their operations in accordance with the laws and customs of war.  Due to terrorists’ failure to fulfill the conditions of Article 1, they fall outside the protection of the laws of war nevertheless, maintaining protections under of the law of nations.[3]  Once captured, terrorists participating in illegal guerrilla warfare  are said to be ‘unlawful belligerents’ and are not provided protection under the Geneva Convention III which lays out the treatment of enemy prisoners of war.

Illegal guerrilla or irregular warfare may be divided into two principal classes; first, where it is conducted by the remnants of the regular forces of a government; and second where it is conducted by individuals or small bands, which do not conduct their operations according to the laws of war.  Under Article 1 of Hague IV, the latter forces are unlawful belligerents regardless of whether there is an existing government which is entitled treatment as a lawful belligerent.[4]   The Geneva Convention, Article 5 does not allow this determination without due process in that:

 “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”[5]

How has the United States determined the status of its prisoners?

The Military Commissions Act’s of 2006 and 2009 were to create a forum in which to try “unprivileged enemy belligerents,” for violations of the law of war and deny them habeas corpus rights.  In 2009, an update to this bill defined an unprivileged enemy belligerent as an individual who: 1) has engaged in hostilities against the United States or its coalition partners; or 2) has purposefully and materially supported hostilities against the United States or its coalition partners.  Additionally, the 2009 update provides detainees with the same rights as military members when facing trial by court-martial.[6]  In 2004, United States set up Combatant Status Review Tribunals for the purpose of determining the need to continue the detention of enemy combatants.[7]  In 2006, the Supreme Court held in Hamdan v. Rumsfeld that the military commissions and tribunals lacked the power to try Hamdan (a Guantanamo detainee) because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.[8]  Following the ruling for Hamdan, a subsequent Supreme Court ruling in 2008 deemed the Combat Status Review Tribunals unconstitutional due to their failure to provide detainees with due process afforded to them under Article 3 of Geneva Convention III in the determination of their status as an enemy combatant.[9]  At the time of this paper, 192 detainees were held in Guantanamo Bay, the Justice Department has concluded that 110 are safe to release, 35 will face prosecution in federal or military courts, leaving approximately 50 considered too dangerous to be freed but cannot face trial due to the lack of evidence.[10]  Over 145 detainees will either see their day in court or obtain their released in the near future.  It is reasonable to predict a wave of legal action against the United States on allegations of mistreatment, torture and war crimes.  On what grounds can the terrorists or other international organizations, armed with the recently released Office of Legal Counsel (OLC) Interrogation Memorandums, file suit against the United States?

The Eighth Amendment to the U.S. Constitution prohibits the use of cruel and inhuman treatment; however it does not go so far as to define torture.  The U.S. Code goes further into what is considered torture and categorically prohibits its use.  Subsection 2340, paragraph 1 defines torture as an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering upon another person within his custody or physical control.[11]  In paragraph 2, the Code further defines severe mental pain or suffering as:

 “The prolonged mental harm caused by or resulting from; (a) the intentional infliction or threatened infliction of severe physical pain or suffering; (b) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (c) the threat of imminent death; or (d)  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.”[12]

 

After defining key terms, Subsection 2340A clearly states the punishment of fines, imprisonment and or death to those who commit torture.  The United States is subject to the laws enumerated in several international and multinational organizations such as the Geneva Convention, the United Nations and the North Atlantic Treaty Organization.  Common Article 3 of the Geneva Conventions prohibits ''violence to life and person,'' in particular ''mutilation, cruel treatment and torture'' and also prohibits ''outrages upon personal dignity, in particular humiliating and degrading treatment''. These terms include ''other forms of cruel, inhuman and degrading treatment or punishment."[13]  In 1994, the United States ratified the United Nations Convention Against Torture which states in Article 2 that even in a time of war there is no justification for torture and that the United States is required to investigate and prosecute those who violate this international law.  Additionally, Article 3 specifically prohibits rendition, which is the act of transferring in prisoner to a country known to torture.[14]  With the President stating that water boarding is torture, it appears that the United States has placed itself in a position to have individuals investigated and prosecuted for war crimes.

With the release of the Office of Legislative Counsel Memorandums which detailed high level involvement in the authorization of enhanced interrogation techniques, it appears to be only a matter of time before the first complaint will be filed.  Though outside the scope of this paper, it is worth noting that upon review of two of these articles ones first impression is that the Bush Administration did everything within its power to justify their actions under the law.  Though a majority of the treatment authorized in the Jay S. Bybee Memorandum is currently used in military training, it doesn’t take much stretch of the imagination to see how some of these ‘authorized’ procedures could get out of hand.[15]  In 2009, several NATO countries (i.e. Spain, Germany) stated that, based on the information that is coming to light, they would begin investigations into the CIA and Bush Administration on suspicion of violating an international ban on torture if the U.S. government fails to take action.[16][17]

Conclusion

A terrorist currently detained by the United States at Guantanamo Bay may, in the near future, have a legal representative assigned to him for the purposes of defending his freedom and litigating for criminal and civil penalties against his captors.  He will be backed by the Eighth Amendment to the U.S. Constitution, the U.S. Code, the Uniformed Code of Military Justice, The Geneva Convention III, the United Nations Convention Against Torture, recent rulings in their favor by the Supreme Court, the classification of water boarding by the Commander-in-Chief as torture, released documents authorizing enhanced interrogations by the Bush Administration, and their ability to review classified documents just as a military member would in a court-martial.  In addition to the factual and judicial strength of the aforementioned, several organizations including the American Civil Liberties Union, the North Atlantic Treaty Organization, the U.N. Security Counsil and the liberal media will be assisting these terrorists in their quest to transform into a victim of war crimes.  There is a possibility that the misjudgment of an overzealous Presidential Administration may land American Soldiers behind bars for 10 years, while the men responsible for killing innocent men, women and children walk free.

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

"Guantanamo Detainee Process." Department of Defense. http://www.defense.gov/news/Sep2005/d20050908process.pdf (accessed February 15, 2010).

Hague Convention (IV); Laws and Customs of War on Land: Regulations Concerning the Laws and Customs of War on Land. Translated by Hague Convention. Vol. IV. Netherlands: International, 1907.

"International Humanitarian Law - Third 1949 Geneva Convention " http://www.icrc.org/ihl.nsf/WebART/375-590006 (accessed 2/14/2010, 2010).

U.S. Code, Title 18, Part 1, Chapter 113C, Sub-Section 2340. Translated by "U.S. Congress". Washington, DC: U.S., 2009.

Bush, G. W. "Address to a Joint Session of Congress and the American People." Harvard Journal of Law & Public Policy 25, (September, 2001): xviii-xvi;.

Bybee, J. "
Memorandum for John Rizzo, Acting General Counsel of the Centtal Intelligence Agency, Interrogation of Al Qaeda Operative." Internal Memorandum, Department of Justice.

Colucci, V. "Torture and the Law." Amnesty International USA. http://www.amnestyusa.org/counter-terror-with-justice/reports-statements-and-issue-briefs/torture-and-the-law/page.do?id=1107981 (accessed February 15, 2010).

Horton, S. "NATO Allies Preparing to Go After Bush Officials on Torture." Harper's Magazine. http://harpers.org/archive/2009/04/hbc-90004829 (accessed February 15, 2010).

Nurick, Lester and Roger W. Barrett. "Legality of Guerrilla Forces Under the Laws of War." The American Journal of International Law 40, no. 3 (Jul., 1946): 563-583.

Obama, Barak. "News Conference by the President." The White House. http://www.whitehouse.gov/the_press_office/News-Conference-by-the-President-4/29/2009/ (accessed February 15, 2010).


Hamdan v. Rumsfeld, Secretary of Defense.
2006.

Thune, J. and Zabel, M. "Military Commissions Act of 2009." U.S. Senate Republican Policy Committee. http://rpc.senate.gov/public/_files/L19Section1031MilitaryCommissionsActofS1390DefenseAuth071409ms.pdf (accessed February, 15, 2010).

United Nations. . United Nations Convention Against Torture and Other Cruel, Inhuman Or Degrading Treatment Or Punishment. Translated by United Nations: International, 1985.

Whitlock, C. "European Nations may Investigate Bush Officials Over Prisoner Treatment." The Washington Post Foreign Service. http://www.washingtonpost.com/wp-dyn/content/article/2009/04/21/AR2009042103742_pf.html (accessed February 15, 2010).

Wilber, D. Q. "2008 Habeas Ruling may Pose Snag as U.S. Weighs Indefinite Guantanamo Detentions." The Washington Post. http://www.sphere.com/search?q=sphereit:http://www.washingtonpost.com/wp-dyn/content/article/2010/02/12/AR2010021204911.html (accessed February, 15, 2010).

 



[1] Barak Obama, "News Conference by the President," The White House, http://www.whitehouse.gov/the_press_office/News-Conference-by-the-President-4/29/2009/ (accessed February 15, 2010).

[2] G. W. Bush, "Address to a Joint Session of Congress and the American People," Harvard Journal of Law & Public Policy 25 (September, 2001), xviii-xvi;, http://911digitalarchive.org/REPOSITORY/MISC_COLLECTIONS/national_guard_bureau/CRRDB/data/documents/1785.pdf.

[3] Hague Convention (IV); Laws and Customs of War on Land: Regulations Concerning the Laws and Customs of War on Land. Public Law IV, (1907): II, http://www.icrc.org/ihl.nsf/FULL/195. 

[4] Lester Nurick and Roger W. Barrett, "Legality of Guerrilla Forces Under the Laws of War," The American Journal of International Law 40, no. 3 (Jul., 1946), 563-583, http://www.jstor.org/stable/2193930.

[5] "International Humanitarian Law - Third 1949 Geneva Convention " http://www.icrc.org/ihl.nsf/WebART/375-590006 (accessed February 14, 2010).

[6] J. Thune and M. Zabel, "Military Commissions Act of 2009," U.S. Senate Republican Policy Committee, http://rpc.senate.gov/public/_files/L19Section1031MilitaryCommissionsActofS1390DefenseAuth071409ms.pdf (accessed February 15, 2010).

[7] "Guantanamo Detainee Process," Department of Defense, http://www.defense.gov/news/Sep2005/d20050908process.pdf (accessed February 15, 2010).

[8] Hamdan v. Rumsfeld, Secretary of Defense, 2006, 4, http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf.

[9] International Humanitarian Law - Third 1949 Geneva Convention

[10] D. Q. Wilber, "2008 Habeas Ruling may Pose Snag as U.S. Weighs Indefinite Guantanamo Detentions," The Washington Post, http://www.sphere.com/search?q=sphereit:http://www.washingtonpost.com/wp-dyn/content/article/2010/02/12/AR2010021204911.html (accessed February, 15, 2010).

[11] U.S. Code, Title 18, Part 1, Chapter 113C, Sub-Section 2340, (2009): 1.

[12] Ibid.

[13] V. Colucci, "Torture and the Law," Amnesty International USA, http://www.amnestyusa.org/counter-terror-with-justice/reports-statements-and-issue-briefs/torture-and-the-law/page.do?id=1107981 (accessed February 15, 2010).

[14] United Nations Convention Against Torture and Other Cruel, Inhuman Or Degrading Treatment Or Punishment, (1985): 1, http://www.hrweb.org/legal/cat.html.

[15] J. Bybee, "Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency, Interrogation of Al Qaeda Operative" (Internal Memorandum, Department of Justice, 2002).

[16] S. Horton, "NATO Allies Preparing to Go After Bush Officials on Torture," Harper's Magazine, http://harpers.org/archive/2009/04/hbc-90004829 (accessed February 15, 2010).

[17] C. Whitlock, "European Nations may Investigate Bush Officials Over Prisoner Treatment," The Washington Post Foreign Service, http://www.washingtonpost.com/wp-dyn/content/article/2009/04/21/AR2009042103742_pf.html (accessed February 15, 2010).