Advance version

534. In a second case, on February 3, 2009, Don Ayala, a U.S. contractor in Afghanistan, was convicted in U.S. federal court of voluntary manslaughter in the death of an individual whom he and U.S. soldiers had detained. See U.S. Attorney’s Office Press Release at http://www.justice.gov/usao/vae/Pressreleases/02-FebruaryPDFArchive/09/20090203ayalanr.html.

535. The United States Attorney’s Office for the Eastern District of Virginia continues to investigate various allegations of abuse of detainees. In addition, the Attorney General announced on August 24, 2009, that he had ordered “a preliminary review into whether federal laws were violated in connection with interrogation of specific detainees at overseas locations.” See http://www.justice.gov/ag/speeches/2009/ag-speech-0908241.html. Assistant U.S. Attorney John Durham assembled an investigative team of experienced professionals to recommend to the Attorney General whether a full investigation was warranted “into whether the law was violated in connection with the interrogation of certain detainees.” Following a two-year investigation, on June 30, 2011, the Justice Department announced that it was opening a full criminal investigation into the deaths of two individuals in CIA custody overseas, and that it had concluded that further investigation into the other cases examined in the preliminary investigation was not warranted.

536. U.S. law provides several avenues for the domestic prosecution of U.S. Government officials and contractors who commit torture and other serious crimes overseas. For example, 18 U.S.C. 2340A makes it a crime to commit torture outside the United States. The War Crimes Act, 18 U.S.C. 2441, makes it a crime for any member of the U.S. armed forces or U.S. national to commit a “war crime,” defined as, inter alia, “a grave breach in any of the international conventions signed at Geneva 12 August 1949” or certain enumerated breaches of common Article 3, whether inside or outside the United States. Similarly, under the provisions of the Military Extraterritorial Jurisdiction Act (MEJA), 18 U.S.C. 3261-3267, persons employed by or accompanying the Armed Forces outside the United States may be prosecuted domestically if they commit a serious criminal offense overseas. The MEJA specifically covers all civilian employees and contractors directly employed by the Department of Defense and, as amended in October 2004, those employed by other U.S. Government agencies, to the extent that such employment relates to supporting the mission of the Department of Defense overseas. See, e.g., 18 U.S.C. 3261(a) (criminal jurisdiction over felonies committed “while employed by or accompanying the Armed Forces outside the United States”); see also 10 U.S.C. 802(10) (military jurisdiction over “persons serving with or accompanying an armed force in the field” “[i]n time of declared war or a contingency operation”); National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375 (2005 Act), Section 1206 Report at 10-13 (describing criminal and contractual remedies in detail).

537. In addition, U.S. nationals who are not currently covered by MEJA are still subject to domestic prosecution for certain serious crimes committed overseas if the crime was committed within the special maritime and territorial jurisdiction of the United States as defined in 18 U.S.C. 7 (e.g., including, among others, U.S. diplomatic and military missions overseas, and Guantanamo). These crimes include murder under section 1111 of title 18, assault under section 113, and sexual abuse under section 2241.

538. Finally, in 2006 the Uniform Code of Military Justice (UCMJ) was amended to provide court-martial jurisdiction over persons serving with or accompanying an armed force in the field not only in time of declared war, but during a contingency operation.

539. Department of Defense. It is the Department of Defense’s policy that any possible, suspected, or alleged violation of the law of war, for which there is credible information, committed by or against U.S. personnel, enemy persons, or any other individual is reported promptly, investigated thoroughly, and, where appropriate, remedied by corrective action.

540. This policy applies to allegations of mistreatment of detainees held in connection with counterterrorism operations. See Department of Defense Directive 2310.01E, The Department of Defense Detainee Program, September 5, 2006, available at http://www.dtic.mil/whs/directives/corres/pdf/231001p.pdf. The Department of Defense has required that all its detention operations meet a high standard of humane care and custody, and its policy is to seek continually to exceed, when possible, international standards for conditions of detention. The Department of Defense does not tolerate the abuse of detainees, and credible allegations are thoroughly investigated, and appropriate disciplinary action taken if allegations are substantiated.

541. DoD Directive 3115.09 (DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning) provides that “[a]ll reportable incidents allegedly committed by any DoD personnel or DoD contractor personnel shall be . . . [p]romptly reported . . . [p]romptly and thoroughly investigated by proper authorities . . . and . . .[r]emedied by disciplinary or administrative action, when appropriate” (paragraph 3b). A reportable incident in this directive is defined as “[a]ny suspected or alleged violation of DoD policy, procedures, or applicable law relating to intelligence interrogations, detainee debriefings, or tactical questioning for which there is credible information.”

542. The Directive states further that “DoD intelligence interrogations shall be conducted only by personnel properly trained and certified to DoD standards” (paragraph 3 d(1)). Congress has now effectively barred civilian contractors from performing interrogation functions, and has required private translators involved in interrogation operations to undergo substantial training and to be subject to substantial oversight. See Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, § 1038, 123 Stat. 2451-2452 (2009); 75 Fed. Reg. 67,632-67,634 (2010). Section 1038 of the National Defense Authorization Act for fiscal year 2010 (Public Law 111-84, October 28, 2009) prohibits contractor personnel from interrogating enemy prisoners of war, civilian internees, retained personnel, other detainees, or any other individual who is in the custody or under the effective control of the Department of Defense or otherwise under detention in a DoD facility in connection with hostilities, unless the Secretary of Defense determines that a waiver to this prohibition is vital to the national security interests of the United States and waives the prohibition for a period of up to 60 days or renews the waiver for one additional 30-day period. The Department does not currently employ contract interrogators, but in the event the Secretary of Defense grants a waiver, the contract interrogators would have to be properly trained and certified to DoD standards and monitored by trained and certified DoD interrogators. All interrogations by contract interrogators at theater detention facilities must be videotaped.

543. Under DoD Directive 2311.01E (DoD Law of War Program), “[a]ll military and U.S. civilian employees, contractor personnel, and subcontractors assigned to or accompanying a DoD Component shall report reportable incidents through their chain of command. Contracts shall require contractor employees to report reportable incidents to the commander of the unit they are accompanying or the installation to which they are assigned, or to the “Combatant Commander.” DoD Directive 2311.01E, paragraph 6.3. Paragraph 3.2 of this Directive defines “reportable incident” as “[a] possible, suspected, or alleged violation of the law of war, for which there is credible information, or conduct during military operations other than war that would constitute a violation of the law of war if it occurred during an armed conflict.” Further, it is DoD policy that “[a]ll reportable incidents committed by or against U.S. personnel, enemy persons, or any other individual are reported promptly, investigated thoroughly, and, where appropriate, remedied by corrective action” (paragraph 4.4).

544. The United States Government has supported a number of efforts to help ensure that the conduct of private contractors complies with applicable laws and is consistent with respect for human rights, and to ensure that they are held accountable in the event that they violate the law. In that regard, the United States Government recently successfully appealed the dismissal of an indictment charging five contractors with voluntary manslaughter and weapons violations in relation to the deaths of 14 and injuries of 20 civilians in Nisur Square in Baghdad, Iraq. The case has been remanded to the trial court for further proceedings. In addition, domestic legislative efforts continue to pass a Civilian Extraterritorial Jurisdiction Act (CEJA) that provides clear and unambiguous jurisdiction to prosecute non-Department of Defense personnel for overseas misconduct. On the international level, the U.S. Government actively engaged in the development of the Montreux Document (2008), and the International Code of Conduct for Private Security Service Providers (Code). The latter initiative has the potential to improve private security contractor (PSC) compliance with applicable laws and respect for human rights, and to provide additional tools for identifying, avoiding, and remediating impacts that PSCs may have on communities and other stakeholders. The Department of State, along with other federal agencies including the Department of Defense, is actively engaged in ongoing efforts to establish a credible governance and oversight mechanism for the Code.

545. Other Executive Branch Agencies. The Central Intelligence Agency (CIA) has also undertaken internal reviews relating to detainee treatment; the results of such reviews are generally nonpublic. Where those reviews indicated potential violations of U.S. criminal laws, the CIA has referred those matters to the Department of Justice.

546. Congress. The Congress of the United States also has conducted extensive investigations into the treatment of detainees. See, e.g., the 2008 Report of the Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody, which can be found at http://levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf. More recently, on October 6, 2009, the Assistant Attorney General in charge of the Criminal Division of the Department of Justice addressed the U.S. Senate, Committee on the Judiciary, Subcommittee on Human Rights and the Law, in a hearing entitled “No Safe Haven: Accountability for Human Rights Violators, Part II.” The Assistant Attorney General stated: “The prosecutions that the Department of Justice, in cooperation with its law enforcement partners, mounts against perpetrators of human rights and law of war violations represent a foundational aspect of the Department’s unwavering commitment to the pursuit of justice.” A copy of the statement can be found at http://www.justice.gov/criminal/icitap/pr/2009/10-06-09breuer-testimony.pdf.

547. Prohibition on use of Evidence from Mistreatment. Information obtained by the use of torture or cruel, inhuman or degrading treatment cannot be introduced into a federal criminal proceeding under the Fifth Amendment of the United States Constitution.

548. The Military Commissions Act of 2009, which was enacted as part of the National Defense Authorization Act for fiscal year 2010 (P. L. 111-84) contained a provision, codified at 10 USC 948r, prohibiting admission of any statement obtained by the use of torture or by cruel, inhuman, or degrading treatment, as defined by the Detainee Treatment Act, in a military commission proceeding, except against a person accused of torture or such treatment as evidence that the statement was made.

549. In paragraph 15 of the Concluding Observations, the Committee recommended that the United States should amend section 1005 of the Detainee Treatment Act so as to allow detainees in Guantanamo Bay to seek review of their treatment or conditions of detention before a court.

550. The United States complies with the standards of Common Article 3 to the Geneva Conventions and the Convention Against Torture, at a minimum, in its detention operations, including those at Guantanamo. As noted, the President’s Executive Order 13491, Ensuring Lawful Interrogations, provides that individuals detained in any armed conflict shall in all circumstances be treated humanely. As noted above, the United States has recently conducted an extensive review and concluded that current U.S. military practices are consistent with the requirements of Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva Conventions.

551. In addition, as discussed above, in Executive Order 13492, the President directed the Secretary of Defense to review the conditions of detention at Guantanamo to ensure full compliance with all applicable laws governing the conditions of such confinement, including Common Article 3 of the Geneva Conventions. The Department of Defense’s review found that “the conditions of confinement in Guantanamo are in conformity with Common Article 3 of the Geneva Conventions.”¹⁵ The review team noted “that the chain of command responsible for the detention mission at Guantanamo seeks to go beyond a minimalist approach to compliance with Common Article 3, and endeavors to enhance conditions in a manner as humane as possible consistent with security concerns.”¹⁶

552. In paragraph 16 of its Concluding Observations, the Committee recommended that the United States should review its position, in accordance with the Committee’s general comments 20 (1992) on article 7 and 31 (2004) on the nature of the general legal obligation imposed on States parties; that the United States should take all necessary measures to ensure that individuals, including those it detains outside its own territory, are not returned to another country by way of, inter alia, their transfer, rendition, extradition, expulsion or refoulement if there are substantial reasons for believing that they would be in danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment. The Committee further recommended that the United States should conduct thorough and independent investigations into the allegations that persons have been sent to third countries where they have undergone torture or cruel, inhuman or degrading treatment or punishment, modify its legislation and policies to ensure that no such situation will recur, and provide appropriate remedy to the victims; that the United States should exercise the utmost care in the use of diplomatic assurances and adopt clear and transparent procedures with adequate judicial mechanisms for review before individuals are deported, as well as effective mechanisms to monitor scrupulously and vigorously the fate of the affected individuals; and that the United States should recognize that the more systematic the practice of torture or cruel, inhuman or degrading treatment or punishment, the less likely it will be that a real risk of such treatment can be avoided by such assurances, however stringent any agreed follow-up procedures may be.

553. The United States will not transfer any person to a country where it determines it is more likely than not that the person will be tortured.

554. In Executive Order 13491, President Obama ordered the establishment of the Special Interagency Task Force on Interrogations and Transfer Policy Issues to ensure that U.S. transfer practices comply with the domestic laws, U.S. international obligations, and policies of the United States and do not result in the transfer of individuals who would be more likely than not to be tortured. The Task Force considered seven types of transfers conducted by the U.S. Government: extradition, removals pursuant to immigration proceedings, transfers pursuant to the Geneva Conventions, transfers from Guantanamo Bay, military transfers within or from Afghanistan, military transfers within or from Iraq, and transfers pursuant to intelligence authorities. The work of the Task Force was informed, inter alia, by the record in past cases, including the 2008 report issued by the Office of the Inspector General of the Department of Homeland Security regarding the Maher Arar case.

555. On August 24, 2009, the Task Force made recommendations to the President with respect to all scenarios in which the United States transfers or facilitates the transfer of a person from one country to another or from U.S. custody to the custody of another country. The Task Force made several recommendations aimed at clarifying and strengthening U.S. procedures for obtaining and evaluating diplomatic assurances from receiving countries for those transfers in which such assurances are obtained.¹⁷ These included a recommendation that the State Department be involved in evaluating all diplomatic assurances, and a recommendation that the Inspectors General of the Departments of State, Defense, and Homeland Security prepare annually a coordinated report on all transfers involving diplomatic assurances conducted by each of their agencies. The Task Force also made several recommendations aimed at improving the United States’ monitoring of the treatment of individuals transferred to other countries. These included a recommendation that agencies obtaining assurances from foreign countries insist on a monitoring mechanism, or otherwise establish a monitoring mechanism, to ensure consistent, private access to the individual who has been transferred, with minimal advance notice to the detaining government, unless there are compelling reasons not to do so. In addition, the Task Force made recommendations that are specific to military transfer scenarios, and classified recommendations designed to ensure that, in cases where the Intelligence Community participates in or otherwise supports a transfer, affected individuals are provided proper treatment. The Task Force recommendations were accepted by the President. The United States has been implementing the Task Force recommendations across the range of government transfers.

556. Removals. In the immigration context, regulations implementing Article 3 of the Convention Against Torture permit aliens to raise nonrefoulement claims during the course of removal proceedings before an immigration judge. See 8 CFR 1208.16-18. These regulations set forth a fair and rule-bound process for considering claims for protection. Individuals routinely assert protection claims before immigration judges within the Department of Justice’s Executive Office for Immigration Review (EOIR), whose decisions are subject to review by the Board of Immigration Appeals, and ultimately by U.S. federal courts. In cases where an arriving alien is believed to be inadmissible on terrorism-related grounds and a full disclosure of such grounds would be prejudicial to the public interest or national security, Congress has authorized, under section 235(c) of the Immigration and Nationality Act (INA), alternate removal procedures that do not require full hearing and review. See 8 U.S.C. 1225(c). However, these cases are exceedingly rare and removal pursuant to section 235(c) is nonetheless not permitted “under circumstances that violate . . . Article 3 of the Convention Against Torture.” 8 C.F.R. 235.8(b) (4). To improve procedures for implementing Article 3 in the section 235(c) context, U.S. Immigration and Customs Enforcement (ICE) issued guidance providing that aliens subject to removal in section 235(c) proceedings are generally allowed a reasonable opportunity to submit a written statement and other relevant information for consideration. Section 235(c) is rarely used to exclude someone from the United States.

557. In some cases involving Article 3 claims in the removal context, the U.S. Government will obtain diplomatic assurances. See 8 C.F.R. 1208.17(f), 1208.18(c). In Khouzam v. Attorney General, 549 F.3d 235, 259 (3d. Cir 2008), the United States Court of Appeals for the Third Circuit suggested that aliens subject to removal on the basis of diplomatic assurances have the opportunity to present evidence and arguments challenging the reliability of the assurances, and be provided with an individualized determination based on a record disclosed to the alien. The Department of Homeland Security has taken measures to increase transparency and process with respect to diplomatic assurances. Upon receipt and evaluation of diplomatic assurances from a destination country, DHS provides notice and, absent exceptional circumstances, copies of the assurances to the alien to whom the assurances relate. The alien has the opportunity to challenge the reliability of the assurances and present additional information and arguments that are factored into the eventual determination by senior DHS officials whether the assurances are sufficiently reliable to allow the alien’s removal to that country consistent with Article 3 of the Convention. The State Department participates in obtaining any diplomatic assurances and in assessing the adequacy of any diplomatic assurances obtained. Although immigration removals pursuant to diplomatic assurances are very rare, the United States recently successfully negotiated a detailed monitoring regime for such an immigration removal.

558. Extraditions. Whenever allegations relating to torture are brought to the State Department’s attention by the extraditable fugitive or other interested parties, appropriate policy and legal offices within the Department, including the Bureau of Democracy, Human Rights and Labor, the Office of the Legal Adviser, and the relevant regional bureau in consultation with post, review and analyze information relevant to the particular case in preparing a recommendation to the Secretary of State. The Department will consider any information provided by the individual, other information concerning judicial and penal conditions and practices of the requesting State, information regarding human rights practices of that State, and the relevance of that information to the individual whose surrender is at issue. The Secretary of State will not approve an extradition if she determines that it is more likely than not that the particular fugitive will be tortured in the country requesting extradition. In some cases, the Secretary might condition the extradition on the requesting State’s provision of diplomatic assurances related to torture, fair and humane treatment, or aspects of the requesting State’s criminal justice system that protect against mistreatment. In addition to assurances related to torture and humane treatment, such assurances may include, for example, that the fugitive will have regular access to counsel and the full protections afforded under that State’s constitution or laws. Whether assurances are sought is decided on a case-by-case basis.

559. Pursuant to the longstanding Rule of Non-Inquiry and statutes adopted by Congress, the Secretary of State’s decision whether or not to extradite a fugitive certified as extraditable by a court has generally been treated as final and not subject to judicial review. This includes the decision whether to seek diplomatic assurances in any particular case and whether to extradite a fugitive subject to such assurances. These determinations result from a process that includes extensive State Department review of the human rights conditions in a country before an extradition relationship is established with it, Senate review and approval of all U.S. extradition partners, the strong incentives for countries to treat extradited individuals appropriately so as not to jeopardize their ongoing extradition relationship with the United States, the complex, delicate and confidential judgments concerning conditions in foreign countries that the Secretary must make in assessing torture claims, and the established and extensive procedures in place to address allegations of torture detailed above.