(c) Coordination with the Committee

510. The United States appreciates its ongoing dialogue with the Committee with respect to the interpretation and application of the Covenant, considers the Committee’s views in good faith, and looks forward to further discussions of these issues when it presents this report to the Committee.

511. The Committee recommended in paragraph 11 of its Concluding Observations that the United States should ensure that its counter-terrorism measures are in full conformity with the Covenant, and in particular that the definitions of terrorism adopted under 8 U.S.C. 1182 (a)(3)(B) and Executive Order 13224 are limited to crimes that would justify being assimilated to terrorism, and the grave consequences associated with it.

512. The terms of the Immigration and Nationality Act (INA) relating to “terrorist activities” do not directly apply to criminal proceedings. The definition used in 8 U.S.C. 1182(a)(3)(B) is primarily used in the immigration context and is different from the definition found under U.S. criminal law (see, e.g., 18 U.S.C. 2331). Much of the conduct described in 8 U.S.C. 1182 is conduct covered under international conventions and protocols related to terrorism (e.g., hijacking, kidnapping, violent attacks on international protected persons, bombings). Furthermore, the INA authorizes the Executive to grant discretionary relief, in appropriate cases, to overcome some of the terrorism-related bars.

513. Executive Order 13224 provides legal authority for the United States to block the property of and freeze transactions with persons who commit, threaten to commit, or support terrorism. Section 3(d) of Executive Order 13224 defines the term “terrorism” as used in the Executive Order to mean an activity that:

(i) involves a violent act or an act dangerous to human life, property, or infrastructure; and

(ii) appears to be intended –to intimidate or coerce a civilian population;

to influence the policy of a government by intimidation or coercion; or

to affect the conduct of a government by mass destruction, assassination, kidnapping, or hostage-taking.

While the United States notes that there is no single definition of terrorism that has been accepted by the international community, the definition found in Executive Order 13224 is consistent with definitions found in the laws of other nations, the offenses covered in international counter-terrorism instruments (see, e.g., Article 2 of the International Convention for the Suppression of the Financing of Terrorism), and pertinent UN resolutions on combating terrorism (see, e.g., UN Security Council Resolution 1566, OP 3).

514. The Committee recommended in paragraph 12 of its Concluding Observations that the United States should immediately cease its practice of secret detention and close all secret detention facilities, grant the International Committee of the Red Cross prompt access to any person detained in connection with an armed conflict, and ensure that detainees, regardless of their place of detention, always benefit from the full protection of the law.

515. On January 22, 2009, President Obama issued three Executive Orders relating to U.S. detention and interrogation policies broadly and the Guantanamo Bay detention facility specifically. One of those orders, Executive Order 13491, Ensuring Lawful Interrogations, inter alia, directed the Central Intelligence Agency (CIA) to close as expeditiously as possible any detention facilities it operated, and not to operate any such detention facilities in the future (section 4 (a) of E.O. 13491). Consistent with the Executive Order, CIA does not operate detention facilities. The Department of Defense (DoD) operates transit and screening facilities that are distinct from theater detention facilities. Consistent with the laws of war, the armed forces use these facilities to remove individuals from the immediate dangers of the battlefield so that appropriate military officials can determine who the detained persons are and whether they should be detained further. The majority of individuals are released from these facilities after the screening process determines that further detention is unnecessary. The small number of individuals not released shortly after capture are subsequently transferred to a theater internment facility structured for longer-term detention. Transit and screening sites are operated consistent with international legal obligations and U.S. law and policy, including Common Article 3 of the Geneva Conventions, the Detainee Treatment Act, and DoD Directive 2310.01.

516. Executive Order 13491 further provides, inter alia, that individuals detained in any armed conflict shall in all circumstances be treated humanely (section 3(a)); and that such individuals in U.S. custody or effective control “shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2-22.3” (section 3(b)).

517. The Executive Order additionally requires that:

All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross (ICRC) with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies. (section 4(b)).

Department of Defense (DoD) Directive 2310.01E (“The Department of Defense Detainee Program”) states that the ICRC “shall be allowed to offer its services during an armed conflict, however characterized, to which the United States is a party.”¹⁰ Consistent with E.O. 13491 and DoD policy, the United States assigns internment serial numbers to all detainees held in U.S. custody in connection with armed conflict as soon as practicable and in all cases within 14 days of capture, and grants the ICRC access to such detainees. The ICRC is made aware of and has access to all U.S. law of war detention facilities.

518. The Supreme Court in Hamdan v. Rumsfeld, 548 U.S. 557, 630-631 (2006), determined that Common Article 3 to the 1949 Geneva Conventions protects “individuals associated with neither a signatory nor even a nonsignatory ‘Power’ who are involved in a conflict ‘in the territory of’ a signatory,” and thus establishes a minimum standard applicable to the conflict with al Qaeda. Consistent with this ruling, and regardless of where an individual is detained, DoD Directive 2310.01E states that it is Department of Defense policy that “[a]ll detainees shall be treated humanely and in accordance with U.S. law, the law of war, and applicable U.S. policy.”¹¹ “All persons subject to this Directive [DoD Directive 2310.01E] shall observe the requirements of the law of war, and shall apply, without regard to the detainee’s legal status, at a minimum the standards articulated in Common Article 3 of the Geneva Conventions of 1949…”¹² Furthermore, Congress and the President have unambiguously declared that the United States shall not engage in torture or inhuman treatment. See e.g., Detainee Treatment Act, 42 U.S.C. 2000dd (“No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.”).

519. Guantanamo. Another of the three Executive Orders, Executive Order 13492, requires that “[n]o individual currently detained at Guantanamo shall be held in the custody or under the effective control of any officer, employee, or other agent of the United States Government, or at a facility owned, operated, or controlled by a department or agency of the United States, except in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of the Geneva Conventions.”¹³ This Executive Order directed the Secretary of Defense to undertake a comprehensive review of the conditions of confinement at Guantanamo to assess compliance with Common Article 3 of the Geneva Conventions. Admiral Patrick Walsh, then Vice Chief of Naval Operations, assembled a team of experts from throughout the Department of Defense to conduct an assessment that considered all aspects of detention operations and facilities at Guantanamo. The review concluded that the conditions of detention at Guantanamo were in conformity with Common Article 3 of the Geneva Conventions.¹⁴ The United States has continued to ensure that the Guantanamo facility comports with Common Article 3 and all other applicable laws.

520. Afghanistan. The United States has strengthened the procedural protections for law of war detainees in Afghanistan, under a detention authority which includes those persons who “planned authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks” as well as “persons who were part of, or substantially supported, Taliban, al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy forces.” In July 2009, the Department of Defense improved its review procedures for individuals held at the Detention Facility in Parwan (DFIP) at Bagram airfield, Afghanistan. The basis for the detainee’s detention is reviewed 60 days after transfer to the DFIP, six months later, and periodically thereafter. These robust procedures improve the ability of the United States to assess whether the facts support the detention of each individual, and enhance a detainee's ability to challenge the basis of detention as well as the determination that continued internment is necessary to mitigate the threat posed by the detainee. For example, each detainee is appointed a personal representative, who is required to act in the best interests of the detainee and has access to all reasonably available information (including classified information) relevant to review board proceedings. Detainees can present evidence and witnesses if reasonably available, and the United States helps facilitate witness appearances in person, telephonically, or by video conferencing. The unclassified portions of review board proceedings are generally open, including to family, nongovernmental observers, and other interested parties. Determinations that a detainee meets the criteria for continued detention are reviewed for legal sufficiency by a Judge Advocate.

521. In paragraph 13 of its Concluding Observations, the Committee recommended that the United States ensure that any revision of the Army Field Manual provide only for interrogation techniques in conformity with the international understanding of the scope of the prohibition contained in article 7 of the Covenant; that the current interrogation techniques or any revised techniques are binding on all agencies of the United States Government and any others acting on its behalf; that there are effective means to file suit against abuses committed by agencies operating outside the military structure and that appropriate sanctions be imposed on its personnel who used or approved the use of now prohibited techniques; that the right to reparation of the victims of such practices is respected; and that the United States inform the Committee of any revisions of the interrogation techniques approved by the Army Field Manual.

522. The Army Field Manual is consistent with Article 7 of the Covenant. As noted above, in Executive Order 13491, the President ordered that, “[c]onsistent with the requirements of . . . the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict,” individuals detained in any armed conflict

shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the U.S. Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.” (section 3(a)).

The President further ordered that

an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2–22.3. (section 3(b)).

The Order provided that in relying on the Army Field Manual, “officers, employees, and other agents of the United States Government”. . .“may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2–22.3, and its predecessor document, Army Field Manual 34–52 -- issued by the Department of Justice between September 11, 2001, and January 20, 2009.” (Section 3(c)).

523. Executive Order 13491 also revoked Executive Order 13440 (2007), which had interpreted Common Article 3 of the Geneva Conventions as applied to CIA detention and interrogation practices. The Order further provided that all executive directives, orders, and regulations inconsistent with Executive Order 13491, including but not limited to those issued to or by the CIA from September 11, 2001 to January 20, 2009 concerning detention or the interrogation of detained individuals, were revoked to the extent of their inconsistency with that order.

524. Interrogations undertaken in compliance with Army Field Manual 2-22.3 are consistent with U.S. domestic and international law obligations. For example, the Army Field Manual states that “[a]ll captured or detained personnel, regardless of status, shall be treated humanely, and in accordance with the Detainee Treatment Act of 2005 and DoD Directive 2310.1E . . . and no person in the custody or under the control of DoD, regardless of nationality or physical location, shall be subject to torture or cruel, inhuman, or degrading treatment or punishment, in accordance with and as defined in U.S. law.” The Field Manual provides specific guidance, including a non-exclusive list of actions that are prohibited when used in conjunction with interrogations. Techniques that are not addressed in the Field Manual are considered prohibited. The Field Manual also provides guidance to be used while formulating interrogation plans for approval. It states: “[i]n attempting to determine if a contemplated approach or technique should be considered prohibited . . . consider these two tests before submitting the plan for approval:

• 
  If the proposed approach technique were used by the enemy against one of your fellow soldiers, would you believe the soldier had been abused?
  
• 
  Could your conduct in carrying out the proposed technique violate a law or regulation? Keep in mind that even if you personally would not consider your actions to constitute abuse, the law may be more restrictive.
  

525. The Army Field Manual authorizes appropriate interrogation techniques for use by all U.S. agencies for detention in armed conflict. Executive Order 13491 established a Special Interagency Task Force on Interrogation and Transfer Policies to evaluate whether the Army Field Manual’s interrogation techniques provided non-military U.S. agencies with an appropriate means of acquiring necessary intelligence and, if warranted, to recommend different guidance for those agencies. On August 24, 2009, the Attorney General announced that the Task Force had concluded that the Army Field Manual provides appropriate guidance on interrogation for military interrogators, and that no additional or different guidance was necessary for other agencies. The Task Force reaffirmed that, in the context of any armed conflict, interrogations by all U.S. agencies must comply with the techniques, treatments, and approaches listed in the Army Field Manual (without prejudice to authorized non-coercive techniques of law enforcement agencies). These conclusions rested on the Task Force’s unanimous assessment, including that of the Intelligence Community, that the practices and techniques identified by the Army Field Manual or currently used by law enforcement provide adequate and effective means of conducting interrogations.

526. The Task Force concluded, moreover that the United States could improve its ability to interrogate the most dangerous terrorists by forming a specialized interrogation group, or High Value Detainee Interrogation Group (HIG), that would bring together the most effective and experienced interrogators and support personnel from law enforcement, the U.S. Intelligence Community, and the Department of Defense to conduct interrogations in a manner that will continue to strengthen national security consistent with the rule of law. The Task Force recommended that this specialized interrogation group develop a set of best practices and disseminate these for training purposes among agencies that conduct interrogations. In addition, the Task Force recommended that a scientific research program for interrogation be established to study the comparative effectiveness of interrogation approaches and techniques, with the goal of identifying the existing techniques that are most effective and developing new lawful techniques to improve intelligence interrogations.

527. U.S. obligations under the law of war do not mandate payment of reparations to individuals; however, the U.S. Government may, in certain circumstances, provide monetary payments or other forms of assistance to persons who suffer loss or injury due to combat or other operations. Such discretionary payments, often called “condolence” or “solatia” payments, do not constitute an admission of legal liability or settlement of any claim. In some circumstances, a claim based on one of several statutory authorities, including the Foreign Claims Act, 10 U.S.C. 2734, and the Military Claims Act, 10 U.S.C. 2733, may provide compensation to detainees for damage, loss, or destruction of personal property while detained.

528. Private suits for civil damages have been brought against private contractors by alleged victims of detainee abuse. See, e.g., Saleh v. Titan, 580 F.3d 1 (D.C. Cir. 2009), cert. denied 131 S. Ct.3055 (2011) (dismissing claims against private contractor companies whose employees had worked as interrogators and translators at Abu Ghraib prison); Al Shimari v. CACI international, Inc., 658 F.3d 413 (4^th Cir. 2011) (reversing and instructing district court to dismiss claims against private contractor); Al-Quraishi v. L-3 Services, Inc, 657 F.3d 201 (4th Cir. 2011)(same); Abbass v. CACI Premier Tech., Inc., No. 09-229 (D.D.C.) (case voluntarily dismissed). Former detainees and/or their families have also brought civil actions seeking damages from current or former government officials. Such claims, when asserted by aliens held outside the United States, have been repeatedly rejected by the courts. See, e.g., Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011); Rasul v. Myers, 563 F.3d 527 (D.C. Cir.), cert. denied, 130 S. Ct. 1013 (2009). Some courts, however, have suggested, over the government’s opposition, that such claims when brought by citizens may proceed. See Vance v. Rumsfeld, et al., Nos. 10-1687, 10-2442 (7th Cir. Aug. 8, 2011); Padilla v. Yoo, 633 F. Supp 2d 1005 (N.D. Cal. 2009), appeal pending. As noted above, detainees can attempt to seek monetary redress through an administrative claims process, under the Military Claims Act and the Foreign Claims Act. Investigations and prosecutions conducted by the U.S. government relating to claims of detainee abuse are addressed below.

529. The Committee recommended in paragraph 14 of the Concluding Observations that the United States should conduct prompt and independent investigations into all allegations concerning suspicious deaths, torture or cruel, inhuman or degrading treatment or punishment inflicted by its personnel (including commanders) as well as contract employees, in detention facilities in Guantanamo Bay, Afghanistan, Iraq and other overseas locations; that the United States should ensure that those responsible are prosecuted and punished in accordance with the gravity of the crime; that the United States should adopt all necessary measures to prevent the recurrence of such behaviors, in particular by providing adequate training and clear guidance to personnel (including commanders) and contract employees, about their respective obligations and responsibilities in line with article 7 and 10 of the Covenant; and that during the course of any legal proceedings, the United States should also refrain from relying on evidence obtained by treatment incompatible with article 7. The Committee has asked to be informed about the measures taken by the United States to ensure the respect of the right to reparation for the victims.

530. The United States does not permit its personnel to engage in acts of torture or cruel, inhuman or degrading treatment of people in its custody, either within or outside U.S. territory. This principle is embodied in multiple U.S. laws and has been forcefully reaffirmed by President Obama with respect to all situations of armed conflict, as discussed above.

531. The Obama Administration has released, in whole or in part, more than 40 OLC opinions and memoranda concerning national security matters as a result of litigation under the Freedom of Information Act. These include four previously classified memoranda released on April 16, 2009, which addressed the legality of various techniques used to interrogate terrorism suspects detained by the CIA and which President Obama revoked to the extent that they were inconsistent with Executive Order 13491.

532. The government of the United States, in various fora, has undertaken numerous actions relating to the alleged mistreatment of detainees. The bulk of the investigation and prosecution of allegations of mistreatment of detainees held in connection with counterterrorism operations, including administrative and criminal inquiries and proceedings, have been carried out by the Department of Defense and other U.S. government components that have jurisdiction to carry out such actions.

533. Department of Justice. The Department of Justice has successfully prosecuted two instances of detainee abuse in federal civilian court. In 2003, the U.S. Department of Justice brought criminal charges against David Passaro, a CIA contractor accused of brutally assaulting a detainee in Afghanistan in 2003. The CIA described his conduct as “unlawful, reprehensible, and neither authorized nor condoned by the Agency.” The then Attorney General stated that “the United States will not tolerate criminal acts of brutality and violence against detainees.” And the U.S. Attorney noted that the extraterritorial jurisdiction exercised by the United States is “[n]ot only vital to investigating and prosecuting terrorists, but also it is instrumental in protecting the civil liberties of those on U.S. military installations and diplomatic missions overseas, regardless of their nationality.” See press release at http://www.justice.gov/opa/pr/2004/June/04_crm_414.htm. Following a jury trial, Passaro was convicted of felony assault. On August 10, 2009, the United States Court of Appeals for the Fourth Circuit upheld the conviction, holding that a U.S. federal court has jurisdiction over the trial of an American citizen for committing assaults on the premises of U.S. military missions abroad. In February 2010, the U.S. Supreme Court refused to hear an appeal by Passaro. Passaro was sentenced to 8 years and 4 months in prison.