Recent Chronology on Torture
April 28, 2004 – photos from Abu Ghraib become public and the issue of the use of torture and other cruel, inhuman or degrading treatment by US agents goes from than allegations by human rights organizations to a full blown public debate. The investigations, Congressional hearings and subsequent revelations include a series of Administration memos dating back to 2001 and 2002 justifying the use of torture and revealing a redefinition of torture so narrow that almost nothing is prohibited.
June 2004 – Supreme Court decision in the Rasul v. Bush case, allowing detainees in Guantanamo access to US courts.
August 2004 – Amnesty International sends a legal observer to the first military commission proceedings held in Guantanamo Bay, Cuba. AI is among the first NGOs to send a representative to the base.
November 2004 – A federal judge orders the government to stop the military commissions because they violate US and international law.
December 2004 – Weeks before Alberto Gonzales is to face confirmation as Attorney General by the Senate Judiciary Committee, the Administration rescinds the August 2002 memo with the narrow definition of torture, but is not clear on what definition replaces it.
January 2005 – During Gonzales’ confirmation hearing, it became clear that Gonzales was interpreting the reservation on the Convention Against Torture as not applying overseas – his reasoning was this: since the definition of CID was tied to the 5th, 8th and 14th amendment, and the Constitution only applies in US territory, the prohibition on CID only applied in US territory.
April 2005 – AIUSA launches Denounce Torture Initiative to educate activists, mobilize them and reach out to non traditional partners to work in coalition to end the use of torture and other ill-treatment by agents of the US government.
July 2005 – Senator McCain offers an amendment to the Defense Authorization bill that would affirm that the prohibition on CID applies to anyone in US custody or control, regardless of where they are held. It also requires that the interrogation techniques in the Army Field Manual are the only techniques permissible for use by military personnel or in DoD facilities. The Senate leadership, in concert with the White House, pulled the bill off the Senate floor. AI members sent over 90,000 letters and made thousands of phone calls to Congress in the intervening months.
December 2005 – McCain amendment passes overwhelmingly as part of the Detainee Treatment Act (DTA) making it clear that the prohibition on CID applies to everyone in US custody and control, regardless of where they are held. This applies to the CIA, DoD and any other US authority holding people. The McCain amendment also restricted interrogation techniques used by the military or in DoD facilities to those permitted by the Army Field Manual. This part did not restrict CIA interrogations that were not done in DoD facilities.
Issue: Cruel and unusual punishment under the 5th, 8th and 14th amendment is interpreted by a “shocks the conscience” standard developed through Supreme Court jurisprudence. The administration interprets the “shocks the conscience” standard as a sliding scale, meaning what shocks the conscience depends on who you have in custody. In essence, what might shock the conscience if done to a common criminal in a US jail would not necessarily shock the conscience if done to Khalid Sheikh Mohammed.
June 2006 – Supreme Court ruling in Hamdan v. Rumsfeld decides that Common Article 3 (CA3) applies to Al Qaeda and others in US custody or control. CA3 includes prohibitions on torture, cruel treatment and outrages on personal dignity including humiliating and degrading treatment. The US ratified the Geneva Conventions without reservations and the Geneva Conventions are not subject to the same interpretations as the CAT convention, so the “sliding scale” analysis tied to Constitutional jurisprudence does not transfer. The decision makes clear that CA3 applies to every agency. The decision also struck down the President’s military commissions.
July 2006 – Deputy Secretary of Defense England issues a memorandum to DoD saying that although he believed all DoD programs were compliant with CA3, all branches should review their operations and ensure compliance with the Court’s decision.
September 2006 – DoD issues the new Army Field Manual which explicitly prohibits a number of techniques such as sleep deprivation, use of dogs, forced nudity, simulated sex acts and waterboarding. The new manual complies with CA3 and has no classified annex.
September 2006 – Bush announces that the remaining “high value detainees” were transferred out of secret prisons to Guantanamo and pushes for passage of the Military Commissions Act with language that would subject US compliance with CA3 to the same reservations as the CAT convention.
September 2006 – Congress passes the Military Commissions Act. The final bill does not include the President’s desired language on CA3, and instead several statements are put into the record preserving US obligation under CA3 and indicating that techniques such as waterboarding, extreme sleep deprivation and others would be prohibited by the language of the bill. The bill does, however, establish military commissions that fall short of fair trial standards, codifies a broad definition of “unlawful enemy combatant,” removes any avenue to judicial review, either through habeas corpus or by invoking ones rights under the Geneva Conventions, and also permits the use of evidence obtained by cruel, inhuman and degrading treatment.
The military and any person in a DoD facility is strictly prohibited from using techniques that violate Common Article 3 or rise to the level of torture or other cruel, inhuman or degrading treatment. This was brought about through legislation (DTA), a Supreme Court decision (Hamdan) and military regulations that are binding on all services. Since the vast majority of people in detention are in DoD facilities this is a significant step forward.
The Administration has been granted broad power to detain people as unlawful enemy combatants, deny them meaningful judicial review and also immunize from prosecution anyone who may have been involved in committing acts that amount to cruel, inhuman and degrading treatment. This is a significant step backwards – it guts previous Supreme Court decisions (Hamdan, Rasul) and codifies some of the most questionable aspects of administration policy. The MCA also permits the use of evidence obtained by cruel, inhuman and degrading treatment.
July 2007 – The Administration issues its Executive Order titled “Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency,” along with classified guidance that details what specific techniques are available to the CIA within the framework of CIA “detention program.” In the order, the administration ties the definition of cruel, inhuman and degrading treatment to the definition of cruel and unusual punishment under the 5th, 8th and 14th amendments. In doing so, the administration retroactively imports the reservation it placed on the Torture Convention into the Geneva Conventions, which were signed with no reservations. The order also included language that left open many of the loopholes that have been exploited in the past to allow techniques such as waterboarding, the use of temperature extremes, sleep deprivation and other tactics, that, especially when used together, could amount to torture. Importantly, the CIA detention program is a program of secret detention and enforced disappearances which are a per se violation of the Convention Against Torture and illegal under international law.
August 2007 – Amnesty International publishes Law and Executive Disorder, a report analyzing the legal shortcomings of the July Executive Order.
October 2007 – The New York Times publishes an article detailing previously undisclosed DOJ memos allowing the CIA to engage in interrogation techniques that amount to torture.
