CIA Interrogations Not “in any armed conflict”?

by Kenneth Anderson

I am unclear as to one thing in the Executive Order issued by President Obama regarding interrogation practices.  The text of the Executive Order is here.  It provides that the CIA must conform to the Army manual with respect to interrogation techniques, but says (bold-face added):

(b)  Interrogation Techniques and Interrogation-Related Treatment.  Effective immediately, 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 (Manual).  Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes.  Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense.  

I am unclear why the language “any armed conflict” is included.  Why would the Executive Order not direct the CIA to conform to such techniques limited to the Army manual under all circumstances?  The CIA does not act solely in the context of armed conflict; on the contrary, although it sometimes acts in armed conflicts, of course, its domestic law authorization extends to non-armed conflict situations as well, provided various domestic legal provisions are met.  

I understand of course that under Supreme Court rulings, the US is in an armed conflict with Al Qaeda – the specific legal meaning in domestic law of the global war on terror – and that this was the mechanism by which the Court applied Common Article Three standards.  (That holding has always seemed to me quite unjustified as a matter of the text of the Geneva Conventions and the history of Common Article Three; I regard it as an instance of the Court, without a lot of expert knowledge or briefing, grabbing onto a legal text that allowed it to prescribe and proscribe the conduct it wanted, result oriented jurisprudence.  But okay, water under the bridge.)  The Court has ruled that as a matter of US domestic law, the US is at war with Al Qaeda everywhere, and in the conclusion that it is a war, all branches of the USG have concurred.  As far as US law is concerned, it’s war with Al Qaeda and the meaning of the Executive Order is clear on this point. 

But a couple of things.  One, not everyone agrees that as a matter of international law, IHL, the US is legally at war with Al Qaeda in the sense of a global, everywhere in the world, armed conflict governed by IHL.  So far as I last understood the ICRC view, it did not believe this.  On the contrary, the last time I was in a public meeting with the ICRC, for example – at SAIS here in DC – its view was that as an international law matter, the US was involved in two wars, one taking place in the theatre of Afghanistan and the other in the theatre of Iraq.  It was simply not factually the case that there was a “global war” underway in a legal sense; although it plainly welcomed the result reached by the Supreme Court in deeming Common Article Three applicable, so far as I have understood it has not accepted that there is a global war in a legal sense.  And, let me add, that is my view as an international law matter as well.  

Suppose, however, that the Obama administration were also to reach this conclusion about the issue of whether there is, as a matter of international law, a global war that reaches to all agents of Al Qaeda?  I.e., conclude that there is no global war?  What would be the reach of the Executive Order?

Well, that’s pretty easily handled by the lawyers.  I just don’t understand why the limitation.  More importantly, however, even in the context of jihadist terrorism, it is not the case now and will certainly not be the case into the future that future terrorists will always and necessarily be part of or affiliated with Al Qaeda.  The whole idea of affiliation in a membership or ‘corporate’ sense has been eroding in favor of far looser networks of ideology.  Not to mention covert action in the future that has nothing to do with jihadists.  If that is the case, then sooner or later, folks picked up by the CIA will not be part of “any armed conflict.”  Will the CIA be limited to the Army manual in those circumstances, given that they will not necessarily be picked up in the course of an armed conflict?  Why the limitation?

I suppose I might be missing something really obvious here, so I would welcome anyone explaining the reason for this limiting “in any armed conflict” language.

http://opiniojuris.org/2009/01/24/cia-interrogations-not-in-any-armed-conflict/

13 Responses

  1. The limits on questing a POW are much stricter than the rules for questioning even criminal suspects. A POW may only be required to give name, rank, and serial number. If he refuses to answer any other question, he may not be punished, or even disadvantaged in any way for his non-cooperation. In Article 17 of the Third Geneva Convention “Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.”

    Suppose authorities are investigating a crime that took place in a prison. Would any US law prevent them from threatening a non-cooperative prisoner with less recreation time, a less comfortable cell, or the loss of any other privilege? A POW has an absolute right to not answer questions. It is not clear that you can take tonight’s desert away from him because he exercises that right.

    On the other hand, the Detaining Power has the absolute right to ask the questions. They can offer inducements to answer, including better treatment, food, or more privileges. The Army Field Manual reflects the rules for interrogation under these restricted circumstances.

    If there is no armed conflict, and the Geneva Conventions do not apply, then the rules for interrogating detainees should come from some other source than Army regulations. Maybe they would be based on FBI interrogation methods. Maybe they should be modelled on Interpol standards. Basing peacetime civilian standards on wartime military regulations would make no sense at all. In other words, if you want to cover situations not “in any armed conflict” you have to actually do the damn work and craft a different order based on some principles that plausibly apply to those different circumstances.

    Had KSM been captured in Afghanistan by the US military, then some of us believe he should have been entitled to protection under the GC as a captured officer in the Afghan army. The US could not escape its obligations by transferring him from the US military to the CIA. However, he slipped across the border into Pakistan, a third party country not directly involved in the conflict. There he was detained by the Pakistani police. The GC clearly did not apply to Pakistan and did not attach because of a transfer from their police to the CIA, a civilian agency of the US. When he ended up in Guantanamo, then the GC reattached when the military took custody. This order plugs the loophole. It does not extend the GC itself to a circumstance it clearly does not cover, but it requires the US civilian agency to act under the same constraints they would have if they were part of the military.

  2. Ken,
    This is no mystery — the language is directed at the arguments of the previous administration and their apologists, namely, that the existence of an armed conflict justifies (in effect) the use of torture, kidnapping, murder, etc. Every major legal brief (and many minor ones) that DOJ has filed in the detainee cases since 2002 begins with an incantation of the 911 attacks, the resultant armed conflict, the depraved nature of the enemy, etc.
    Charly
     

  3. Charles and Howard have really covered all aspects of the reasons for this.  Great posts gentlemen.

    I am simply less certain than Howard, given the cross-border aspects of the conflicts in Afghanistan, that Common Article 3 of the GCs has no applicability in Pakistan (at least as a matter of US law) given the 2006 Hamdan decision.  In other words, Army interrogation standards (and the EO) are applicable in both CA2 and CA3 conflicts.  If the conflict with al Qaeda (and the Taliban – at least post-US-installed Afghan government) is transnational, then it would seem that if the “armed conflict” threshold is met in any other state that is party to the GCs, including Pakistan, CA3 would apply.  CA3 clearly has different, more limited protections for those who have been captured or detained.

    At any rate, there is clearly other US law applicable to the CIA, such as the criminal prohibition of torture, that would allow greater latitude but preserve fundamental requirements of international law.

  4. John,

    You’ve raised an important detail. . .

    The Hamdan decision did NOT rule the conflict was under CA3 — they ruled  it was unnecessary to decide between CA2 or CA3 because CA3 was the minimum that would apply and that was sufficient to decide the issues before them  — it remains an open question. See Hamdan v. Rumsfeld, 2006 U.S. LEXIS 5185 (548 U.S. 557)(2006), *123-125:

    “The conflict with al Qaeda is not, according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply because Article 2 of those Conventions (which appears in all four Conventions) renders the full protections applicable only to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. T., at 3318. Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a “High Contracting Party” — i.e., a signatory of the Conventions, the protections of those Conventions are not, it is argued, applicable to Hamdan.

    “We need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by . . . detention.” Id., at 3318. One such provision prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Id., at 3320.”

  5. This raises two questions. Is Pakistan a “Party to the conflict” and if so, which side are they really on?

  6. Well if they’re smart they’ll quit it treating as an armed conflict at all, but it’s obvious from these latest missile strikes that Gates and Petraeus are still running the show.  Hence, the only real question is how long will it take Obama to figure out that Gates and Petraeus are incompetent.

    It’s equally apparent they’re sticking to the Bush concept of a war with the Taliban and Al Qaeda in which Pakistan is a somewhat compromised ally. That remains what it was from the start — an idiotic waste of time, political theater more than anything else.

    There’s really no point to even talking about this stuff because the issues are buried under so much BS and confusion.  Obama has a very steep learning curve ahead of him in this area, and the basic problem is simple: we do not have a coherent set of objectives — we literally don’t know what we are trying to do.

  7. Howard and Charles,

    Wonderful thoughts on the law gentlemen (I leave the policy aspects of Charles’ last statement to someone else).  First, I think I disagree with Charles, perhaps only semantically.  I believe the Hamdan decision found that CA 3 applied at a minimum to the conflict with al Qaeda occurring in Afghanistan, a high contracting party (HCP) to the GCs.  It did not decide on CA 2, though I have argued that Hamdan’s later charges under the MCA (Charge I, spec. 2) potentially placed him in both a CA 2 conflict between the US Coalition and the Taliban and a CA 3 conflict between the US and al Qaeda simultaneously.  (See Dehn – Why Article 5 Status Tribunals are not ‘Required’ and Guantanamo, 6 JICJ 371 (2008)).

    Second, in an “internationalized” non-international armed conflict, the state in which the conflict is taking place need not be a “party” to the conflict for CA 3 to apply (and some scholars – waywardly in my opinion – argue that these are CA 2 conflicts even though the territorial state is not involved).  This, I think, would be the status of the current conflict with the Taliban or al Qaeda (or both if one truly cannot separate the two) in Afghanistan. 

    My earlier comment meant to suggest that in like manner, it may also be that CA 3 applies to the parts of these conflicts occurring in Pakistan (also a HCP).  If so, the restrictions contained therein would serve to limit the interrogation techniques the CIA may use.  Thus, it is important to note that the referenced Army FM applies both to interrogations of PWs (or EPWs if you like) in CA 2 conflicts, as Howard mentioned, and to those detained and interrogated in CA3 conflicts (see the President’s EO reference to interrogation “in any armed conflict”).

    My comment meant to point out that if CA 3 applies in Pakistan (and it might not beyond the border region if the territorial applicability of the GCs or CA 3 is limited to the actual zone of conflict), then Howard’s statement regarding the lack of Army FM or GC interrogation limits for KSM might have been inaccurate.  This is all, of course, separate from any argument of whether he was a member of the Taliban (or fomer Afghan army if I read Howard correctly) as Howard alluded to above.

  8. John,

    Re Hamdan, my point was simply that Hamdan didn’t resolve whether the conflict falls under CA2 or CA3, but only established that it’s under one or the other. That’s significant in light of the Bush administration’s subsequent efforts to nullify and evade both the ruling and the law, especially the part of the MCA which attempted to redefine CA3 via 18 USC 2441. In my view, both the MCA and DTA are unconstitutional.

    I also think the notion of an “internationalized non-international conflict” flies in the face of the plain language of CA2. Wars are about territory, and the only territory in which the United States could engage in a non-international armed conflict is the US itself. Equally, the war against Al Qaeda is no war at all, no more than the war on drugs or a war on witches and heretics would be.

    As for policy, WHAT policy?

    The clearest fact of the last seven years is that we don’t actually have one — and the results speak for themselves. One has a policy to the extent that one has rational objectives and some coherent notion of how to realize them. We don’t, and it’s really obvious we don’t.

  9. It is conversations like this that make opiniojuris so valuable to me.  No other weblog on international law has this kind of great discussion.  Kudos, gentlemen.

  10. “a facility owned, operated, or controlled by a department or agency of the United States”

    So people can be held in places and bad things done to them as long as they do not meet the standard?
    Best,
    Ben

  11. Ben,

    The text is in the alternative:

    “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”

    So the US cannot invite someone else into its facilities and permit that person to take otherwise prohibited acts; and, to answer your question, no — if the individual in question is under the effective control of the US, then the prohibited acts cannot take place no matter where the person is located.

    All the best,

    Michael

Trackbacks and Pingbacks

  1. [...] Kenneth Anderson at Opinio Juris wonders why the EO on interrogation techniques includes a reference to “any armed [...]

  2. [...] Kenneth Anderson at Opinio Juris wonders why the EO on interrogation techniques includes a reference to “any armed [...]