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Counter-Terrorism - International Law and Practice edited by Salinas de Frías, Ana María; Samuel, Katja; White, Nigel D (1st January 2012)

Part III Counter-terrorism In Practice, 20 Torture, Interrogation, Counter-Terrorism, and the Rule of Law

Richard Pregent

From: Counter-Terrorism: International Law and Practice

Edited By: Ana María Salinas de Frías, Katja Samuel, Nigel D White

Subject(s):
Torture — Prisoners of war — Terrorism — Rule of law — Self-defence — Necessity — Armed conflict, international — European Court of Human Rights (ECtHR) — Admissibility of evidence

(p. 515) 20  Torture, Interrogation, Counter-Terrorism, and the Rule of Law

The crucial challenge facing … all democratic nations … is how to effectively respond to the threat of terrorism without abandoning the fundamental human rights principles that are essential to the maintenance of the rule of law and the hallmark of free and democratic societies.1

1.  Introduction

This chapter deals with the use of coercive interrogation methods by states while combating terrorism. Despite well established prohibitions in both international human rights law and the law of armed conflict, many states have used and continue to use coercion in an effort to extract intelligence from terrorist suspects. Some view terrorism as a fundamental attack on the very existence of states, an existential threat, and therefore seek to justify the use of torture and cruel, inhuman, and degrading treatment as a matter of necessity and self-defence. These justifications have been consistently rejected by the international legal community. This chapter reviews some examples of state sanctioned coercive interrogation methods, describes the judicial decisions which led to corrective actions by those states, and sets forth some of the unintended consequences these actions have had in the fight against terrorism. It also discusses the basic laws protecting fundamental human rights in the contexts of criminal law and the law of armed conflict (LOAC). Additionally, the chapter sets forth the basic legal standards that apply to every interrogation, no matter the status of the suspect, no matter the nature of the threat, no matter the cause of the interrogator, and no matter where in the world they occur. Finally, it examines (p. 516) the practical importance of conducting all interrogations in accordance with the rule of law,2 focusing especially upon reliability, admissibility, and legitimacy.

2.  Reactions to Terrorism

After being attacked on 11 September 2001 (9/11), the United States (US) Government secretly approved the use of torture and cruel, inhuman, and degrading treatment during interrogations of certain suspected terrorists.3 Examples of its use include the Central Intelligence Agency (CIA) Inspector General’s Report (CIA IG Report) of 2004 which disclosed that one high value detainee, Khalid Shaykh Muhammad, was waterboarded 183 times in March 2003.4 In another case the Convening Authority for the US Military Commissions concluded that interrogators had tortured Mohammed al-Qahtanui, the ‘twentieth hijacker’ of the 9/11 attacks, by conducting interrogation sessions for 18 to 20 hours a day for 54 consecutive days. This had included forcing him to stand naked in front of a female agent; threatening him with a military working dog; forcing him to wear women’s underwear; forcing him to perform dog tricks’; insulting his mother and sisters; and exposing him for prolonged periods of time to cold temperatures.5 A final illustration is that during 2002 at a detention facility in Bagram, Afghanistan, US military police and interrogators systematically abused detainees by shackling their hands to fixed objects above their heads to enforce sleep deprivation and by beating them on the legs with batons and their knees. These ‘compliance blows’ were so severe that they resulted in the deaths of two detainees at Bagram within six days of each other.6 These are three of the most egregious examples of coercive interrogation by agents of the US; there are many others.

(p. 517) At the time these coercive interrogation methods were used by the US, they had been determined by government lawyers to be within the rule of law.7 Secret legal opinions had been issued by the Office of Legal Counsel (OLC) within the Department of Justice in 2002 which concluded that various coercive methods of interrogation were not violations of domestic US law implementing the United Nations (UN) Convention Against Torture 1984 (CAT) or the Geneva Conventions 1949.8 However, the legal opinion defined ‘torture’ so narrowly that a suspect would have to have been killed or maimed to violate the statute. The opinion further noted that even if such an event occurred, the interrogator would be able to rely on the defence of necessity to avoid criminal responsibility. In a related legal opinion, the OLC concluded that Common Article 3 Geneva Conventions did not apply to al Qaeda or the Taliban.9 Based upon OLC legal advice, President Bush issued a memorandum which stated that Taliban detainees were unlawful enemy combatants; they did not qualify for prisoner of war status; and that Common Article 3 did not apply to either al Qaeda or Taliban detainees.10

The President also wrote in the memorandum that ‘our values as a nation, values that we share with many nations of the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment’. It appears that the language was intended to describe an almost noble, values-based self-restraint: noble in the sense that it implied there was a category of detainees whom America could legally treat inhumanely if it chose to. The memorandum went on to direct that US Forces would treat all detainees ‘humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva’.11 The term ‘humanely’, however, is not defined and Common Article 3—which would have guaranteed some basic standards—had been declared to be inapplicable. More problematic still was the use of the term ‘military necessity’. (p. 518) It appeared that the President was telling his commanders that there now was a military necessity exception to the humane treatment policy he was proclaiming.

In order to understand the full significance of this memorandum, it is important to note here that, until its issue, US military doctrine on and standards for interrogation and detention had been firmly based upon the Geneva Conventions.12 Thus, by proclaiming that the Geneva Conventions did not apply to these detainees, the President effectively removed this foundational doctrine from military practices. This in turn introduced a slippery slope in terms of compliance with otherwise applicable military regulations and standards. For example, later that year interrogators at Guantánamo Bay requested the authority to use methods that would violate Geneva Convention standards. This was granted in part because the legal review of that request was based upon the premise that the Geneva Conventions did not apply to al Qaeda or Taliban detainees.13 As a whole, these actions constituted a major derogation from the fundamental human rights provisions of several human rights conventions, as well as the long established protections of the law of armed conflict.

After the revelations of detainee abuses at Abu Ghraib in April 2004, portions of these legal opinions were leaked to the press and roundly criticized by legal scholars.14 There was also a series of investigations into both military and CIA interrogations.15 (p. 519) Corrective actions taken by the US included withdrawing the erroneous legal opinions in 2004; publishing military interrogation rules in 2005 that returned to the well established standards of the Geneva Conventions that were in place before 9/11; as well as disciplining individual actors.16 The US Congress passed the Detainee Treatment Act in 2005 turning the military interrogation policies into enforceable law. Then, in 2006, the US Supreme Court declared that Common Article 3 Geneva Conventions applied to al Qaeda detainees as a matter of law.17 Similarly, one of the first acts of the Obama Administration in 2009 was to repudiate the interrogation legal opinions and policies of the prior administration, and to impose the same Geneva based interrogation standards followed by the military upon the CIA.18

An important lesson to be learned from these events is that while these corrective actions have brought US interrogation practices in line with the rule of law, they have not removed the taint from the information provided by the suspects while undergoing coercive interrogation. For example, in late 2010 a US Federal criminal court excluded the testimony of a key prosecution witness, who would have testified that the defendant had purchased explosives from him, because the defendant had disclosed the witness’s name under coercive interrogation. The defendant was subsequently acquitted of all but one charge.19

While this exclusion of evidence resulting from coercion is a victory for the rule of law on the one hand, it has created its own difficulties in response, which include different kinds of human rights violations. For example, the Obama Administration is reportedly developing an executive order that will authorize the indefinite detention without trial of certain terrorist suspects. It appears that there is extensive intelligence which suggests that approximately 48 Guantánamo detainees are dangerous terrorist threats, but the evidence against them is either tainted by coercive interrogations as approved by the Bush Administration, or else is too highly classified to admit as evidence in open court proceedings. The Obama Administration, however, appears to believe they are too dangerous to release. Ironically, the resolution of one human rights violation, the exclusion of coerced statements, may result in another, (p. 520) namely the indefinite, extra-judicial detention of these detainees in violation of their fundamental human rights to liberty and due process.20

However, such practices and responses are not unique to the US. In particular, the Israeli General Security Service (GSS) used coercive interrogation methods with suspected terrorists for years. During the 1980s the Israeli Government established the Landau Commission to inquire into those methods. The Landau Report21 basically validated the practice, concluding that ‘the exertion of a moderate measure of physical pressure cannot be avoided’.22 Consequently, the GSS continued to use coercive methods over the next decade. After the Landau Report, Israel ratified both the International Convention on Civil and Political Rights 1966 (ICCPR) and CAT, resulting in its being repeatedly criticized by the UN Human Rights Committee for its admitted use of ‘moderate physical pressure’ in interrogations.23 It was not until 1999, when the Israeli Supreme Court expressly prohibited such practices,24 that the Israeli policy changed. Of particular interest here, the Court concluded that a ‘reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever…’.25

Another historical example is the UK’s sanctioned use of coercive interrogation methods in Northern Ireland in the 1970s. Those methods included sleep deprivation, hooding, stress positions, exposure to loud noise, and reduced rations. In a landmark case for human rights law, these techniques were determined by the European Court of Human Rights (ECtHR) to be cruel, inhuman, and degrading in 1978.26 Ironically, this case was cited by US government lawyers for the proposition that (p. 521) proposed coercive interrogation methods did not amount to torture.27 Since the 1970s the ECtHR’s rulings in this area have evolved. They now focus not merely on the degree of pain inflicted to determine whether it was severe enough to constitute torture, but also on the motivation of the interrogators. The ECtHR appears to be emphasizing that pain, whether torture or cruel, inhuman, and degrading treatment, inflicted to force a person to confess or to collect information is a violation of Article 3 European Convention on Human Rights (ECHR).28

Although legally flawed, all of these actions were intended to produce information needed to deal with a perceived security imperative, specifically a terrorist threat. Interrogators concluded that they had to use coercive methods to force information from their detainees, and the state sanctioned those actions declaring them to be both necessary and within the rule of law. In each case, the state was corrected by either domestic courts or an international tribunal. States engaged in a counter-terrorism campaign, however, will continue to need reliable intelligence to identify, understand, and eliminate the threat, as well as to capture the perpetrators and disrupt their networks. A central question remains how states will discipline the process of information gathering. How do states gather the information they need to protect their citizens, hold the guilty responsible, and still respect fundamental human rights and the rule of law? Such questions are the primary focus of the remainder of the current discussion.

3.  Legal Regimes

In order better to understand the use of coercive interrogation in combating terrorism, it is necessary to understand the development of national and international efforts to criminalize terrorism and the more recent reliance on LOAC to combat terrorism. Additionally, both of these legal regimes29 must be placed into the context of human rights law. The applicability and related norms of these legal regimes to counter-terrorist situations have developed and evolved over the last half century as they have been used to deal with specific incidents of terrorism; the phenomenon is not new. At times these regimes have been complementary, and at other times they have (p. 522) been in conflict in terms of their application and any hierarchy of principles existing between them.

Regarding criminal law regimes, while it is difficult to state a general principle that applies in every nation, it is widely accepted across common law, civil law, and Islamic law traditions that confessions to crimes must be voluntary and not be the result of coercion.30 However, what constitutes ‘voluntary’ varies considerably across those legal traditions and will be discussed below. There is no variance, however, regarding coerced confessions; they are prohibited. This is, to a degree, a result of the global advancement of human rights law. As will become apparent, there is a similar broad prohibition against coercion under the law of armed conflict.

3.1.  The Human Rights Law Regime

The Universal Declaration of Human Rights 1948 (UDHR)31 is recognized as the cornerstone of the modern human rights32 movement, at least among Western nations. The inspiration for the UDHR was, in part, the extraordinary human rights abuses perpetrated by states leading up to and during the conduct of World War II. While not a legally binding document on states, the UDHR sets forth fundamental rights to which every person is entitled. Relevant to this discussion, it states that no one shall be subjected to torture or to cruel, inhuman, and degrading treatment or punishment (Article 5). The ICCPR includes virtually identical language at Article 7: ‘No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.’33 Additionally, similar if not identical language is found in nearly every regional convention on human rights that has been adopted subsequently, some of which do have the force of law among their (p. 523) signatories.34 Similarly, the CAT built upon the language of the UDHR and ICCPR, entering into force in 1987; there are currently 146 states parties.35 The CAT defines torture as:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The CAT sets forth an absolute bar to torture without exception or derogation.36 It does not define the phrase ‘other cruel, inhuman or degrading treatment’. This has resulted in nations, human rights courts, and non-governmental organizations seeking to categorize various measures of conduct and suffering in an effort to determine when actions rise to the level of cruel, inhuman, and degrading treatment. For example, the International Committee of the Red Cross (ICRC) distinguishes between torture and cruel, inhuman, and degrading treatment by stating that torture involves a specific purpose and the intentional infliction of severe suffering or pain; whereas cruel and inhuman treatment involves no specific purpose, only that significant levels of suffering or pain are inflicted; and degrading treatment or outrages upon personal dignity, which also involve no specific purpose, require that significant levels of humiliation or degradation are inflicted.37 The language, however, is imprecise and undefined, only taking some form when applied to specific fact patterns, such as the Ireland v United Kingdom case noted above.38 It is clear, however, that there is no ‘terrorism exception’ to the prohibition against torture and cruel, inhuman, and degrading treatment. A state may not use coercive methods to interrogate a terrorism suspect.

(p. 524) 3.2.  The Criminal Law Regime

A general overview of criminal law counter-terrorism regimes has been presented earlier.39 This section will focus upon the interrogation aspects of those regimes. As noted in the earlier chapter, nearly every nation impacted by terrorism has developed its own distinctive criminal law response to terrorist threats. And human rights organizations have criticized virtually every anti-terrorism legal regime put in place since 9/11. Amnesty International (AI) has concluded that some states ‘have used the climate of fear created by terrorism to enhance powers to suppress legitimate political dissent, to torture detainees, subject them to enforced disappearances, or hand them over to other states in violation of the principles of non-refoulement and undermining laws governing extradition’.40 AI criticizes the counter-terrorism legal regimes in Ghana, Russia, the US, the UK, Spain, Denmark, Norway, France, Turkey, Algeria, Morocco, Tunisia, India, Chile, Australia, and South Africa, and Iraq, although this list is not exhaustive.41 Generally the criticisms have focused upon the breadth and vagueness of the definition of ‘terrorism’; the expansion of the state’s authority to detain suspects, particularly incommunicado; the lack of notice of the offence; and the lack of access to counsel.42 The one criticism that has not been included is that any regime legally sanctions the use of coercive interrogation methods. The criticism in this arena is one of practice rather than law. Saudi Arabia, for example, is condemned by AI for ‘gross violations of human rights’ despite the fact that in 2001 the Saudi Arabian Law on Criminal Procedure was amended to prohibit torture and require that statements based on interrogations must be voluntary.43

Physical coercion is in some ways the easiest subject for a state to deal with; it has been universally condemned and is prohibited by all. The legal prohibition will not, however, by itself eliminate the practice. Practical steps must be taken to enforce the prohibition by both holding accountable those who violate the law and barring the use of such evidence in court. The greater challenge, particularly in the context of counter-terrorism given the expanded authorities of the police and the asymmetric threat terrorism represents, is how a state can ensure that confessions are in fact voluntary. How does a state establish in-custody interrogation rules that will enable the state to develop the information it needs while still protecting the suspect’s fundamental rights?

(p. 525) US jurisprudence has long recognized that detention itself is inherently coercive.44 In 1966 the US Supreme Court decided that to overcome this coercive effect and ensure that confessions are voluntary, suspects taken into custody must be advised of their rights to silence and access to counsel.45 Canada has similar requirements for the police, but they are based in legislation rather than judicial rulings.46 Britain requires warnings whether the suspect is taken into custody or not, but allows for an administrative delay of the exercise of the right to counsel for up to 36 hours in some circumstances.47 In Germany once persons are accused of a crime the police must inform them of their rights to silence and counsel whether they are taken into custody or not.48 The Russian constitution recognizes a right against self-incrimination and Russian courts require police to inform suspects of this right.49 Russian law also, however, requires witnesses to testify, leaving it to the discretion of the police to determine who is a suspect and who is a witness.50

In other countries suspects have no right to silence at all; they are legally obliged to cooperate with police and tell the truth.51 Since 1995 Britain also allows judges and juries to draw adverse inferences if a suspect refuses to police questions under certain circumstances.52 In other cultures confessions of an accused to the commission of certain crimes are not valid unless made before a judge to ensure they are voluntarily given; out of court admissions may always be retracted in court.53

Thus, while all nations appear to prohibit physical coercion during interrogations, each has a different approach to ensuring that statements are voluntarily given. Each nation applies its own criminal law and criminal procedural code to terrorism investigations. Beyond the fundamental prohibition against torture and cruel, inhuman, and degrading treatment, there is no single, uniform, human rights based standard for the interrogations of terrorism suspects to ensure statements are voluntarily given. Although this may seem to be an obstacle to international cooperation, it is simply a reflection of cultural differences. States will embrace and enforce human rights in their own unique ways. It is also important to note here that basic (p. 526) human rights principles are being protected by both domestic and international courts as the counter-terrorism legal regimes are developing.

Above we have seen US domestic courts excluding evidence tainted by coercive interrogations54 and directing the Executive Branch to apply Common Article 3 Geneva Conventions to the Taliban and al Qaeda.55

In France, a suspect has had the right to silence for decades, but, until recently, had no right to be informed of it by either the police or an examining magistrate. In terrorism cases the right to counsel could be delayed for up to 72 hours after detention. In late 2010, the French Court of Cassation determined that all suspects, including terrorism suspects, must be informed of their right to silence when taken into custody and that they are entitled to counsel during any interrogation or court proceeding.56 To do less, the court reasoned, would be to violate the person’s fundamental human right to a fair trial as enshrined in Article 6 ECHR.

In the UK, the police had been granted wide powers to stop and search without reasonable suspicion under section 44 Terrorism Act 2000. After noting that the powers were unlimited and had been used by the police over 117,000 times in 2007/2008, the ECtHR concluded that they were a violation of the human right to privacy protected by Article 8 ECHR.57

3.3.  The LOAC Regime

After 9/11 the US declared itself to be at war with those individuals and organizations that planned, perpetrated, and supported the attacks.58 On 14 September 2001, the US Congress passed an authorization to use military force giving the President the authority to use ‘all necessary and appropriate force against those nations, organizations, or persons, he determines authorized, committed, or aided the terrorist attacks’.59 This law continues to support and define the nature and scope of the President’s authority in the US ‘War on Terror’.

The US position remains that, a decade after the attacks of 9/11, it is still engaged in a war of self-defence.60 Under the principles of the law of war, or LOAC, the US (p. 527) believes that it has the authority to use force to defend itself. This permits it to use force against terrorists and detain terrorist suspects within a LOAC paradigm, a much broader grant of authority than traditional criminal law enforcement authorities. But LOAC also brings its own unique constraints upon a state’s authority to act. For example, the requirements to comply with the principles of discrimination and proportionality in its targeting decisions; and to maintain certain treatment standards for detainees, including rules prohibiting coercive interrogation methods.61

3.3.1.  Law of Armed Conflict

At the same time as the UDHR was being developed, the Geneva Conventions of 1949 were being written.62 Like the UDHR, these Conventions were inspired by World War II, but rather than limitations upon a state’s power over its citizens, the Geneva Conventions were designed to discipline the actions taken by belligerents in the context of armed conflict. Earlier conventions provided some guidance regarding prisoner of war (POW) treatment but were inadequate.63 The Geneva Convention 192964 was more explicit. Regarding the interrogation of POWs, it states that ‘[n]o pressure shall be exercised on prisoners to obtain information regarding the situation in their armed forces or their country. Prisoners who refuse to reply may not be threatened, insulted, or exposed to unpleasantness or disadvantages of any kind whatsoever.’65

The Geneva Convention Relative to the Treatment of Prisoners of War 1949 (GC III) greatly expanded the rules for POW treatment. Regarding interrogation, the guidance is explicit: ‘No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.’66

The Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (GC IV) sets forth treatment standards for civilians during armed conflict (p. 528) and occupation. Although there is no language focusing upon interrogation of protected persons, Article 27 states: ‘Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.’67

The above language was intended to control the actions of states during traditional international armed conflicts, that is, a conflict between states.68 Common to all of the Conventions is Common Article 3 which explicitly applies to all non-international armed conflicts. Common Article 3 requires that persons who are not participating in hostilities including detainees must be treated humanely. It also specifically forbids ‘violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture’ and ‘outrages upon personal dignity, in particular, humiliating and degrading treatment’.69

The Additional Protocols to the Geneva Conventions 1977 provide even greater clarity regarding the fundamental standards of treatment. Additional Protocol 1 (AP I) deals with international armed conflict and, building upon Common Article 3, states that any person who is in the control of a party to the conflict has certain fundamental guarantees. After reiterating the humane treatment standard of Common Article 3, Article 75 AP I prohibits, among other acts, ‘torture of all kinds, whether physical or mental’; ‘outrages upon personal dignity, in particular humiliating and degrading treatment’; and ‘threats to commit any of the foregoing acts’.70 Additional Protocol II (AP II) expands the guidance for standards of treatment in non-international armed conflicts. Again echoing Common Article 3, Article 4 AP II requires that all persons not taking part in hostilities must be treated with ‘respect for their person, honour and convictions and religious practices’ and always be treated humanely. Article 4 explicitly prohibits ‘violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment’; ‘outrages upon personal dignity, in particular humiliating and degrading treatment’; and ‘threats to commit any of the foregoing acts’.71

(p. 529) As seen above the US Army built its detention and interrogation doctrine, policies, and training upon the Geneva Convention standards.72 Therefore, the fact that the US has not ratified the Additional Protocols is largely irrelevant in practice since the substance of them is implemented within the relevant policies. Prior to 9/11 all detainees, including prisoners of war, ‘captured insurgents’, and ‘other captured, detained, or retained persons’ were protected; ‘physical or mental torture or coercion’ of any kind were explicitly prohibited.73 The US Department of Defense Law of War Program directed that US forces comply with the law of war during all armed conflicts, regardless of how such conflicts are characterized, and with the principles and spirit of the law of war during all other operations.74 It took the deliberate, secret, and incorrect legal analysis of Bush Administration political appointee lawyers described earlier to derogate from these standards.

3.3.2.  Military Commissions

A detailed examination of the use by the US of these alternative judicial avenues is beyond the scope of this chapter,75 rather the focus here remains on interrogation techniques employed and the admissibility of statements resulting from coercive interrogation methods. As noted above, since 9/11 the US position has consistently been that it is engaged in a war of self-defence. This was the legal basis for the creation of a court specifically tailored to prosecute ‘unlawful belligerents’ for actions that violate LOAC. Shortly after the 9/11 attacks, the Bush Administration created a military tribunal system by executive order to prosecute these violations.76 The rules of evidence developed for these tribunals adopted a basic reliability test for the admissibility of statements by an accused which permitted the use of evidence obtained through torture or cruel, inhuman, and degrading treatment. After the US Supreme Court determined that these tribunals violated both the US Constitution and the Geneva Conventions,77 the US Congress passed the Military Commissions Act 2006 (MCA).78

(p. 530) The MCA authorized the President to create military commissions to prosecute detainees who were ‘unlawful enemy combatants’ for violations of the law of war. The MCA prohibited evidence obtained through coercion if this occurred after 30 December 2005, the date of the enactment of the Detainee Treatment Act.79 In 2009, the US Congress amended the MCA,80 making military commissions similar to traditional federal criminal courts. The amendments prohibited the use of any evidence derived from torture or cruel, inhuman, and degrading treatment before or after 2005.81

Thus the US has two court systems available to prosecute terrorists: federal criminal courts based upon Article III US Constitution, and military commissions. Article III courts deal with terrorists using the traditional criminal law model controlled by Federal criminal codes and procedure. Military commissions are available to prosecute terrorism suspects as violators of LOAC and are controlled by Federal law, the military commission’s own unique procedures, and are subject to the oversight of Article III courts. As such, military commissions do not have exclusive jurisdiction. The decision as to which court any particular case will be referred to ultimately lies with the Attorney General, with the recent addition of the oversight of the US Congress.

It is critical to note, however, that today neither the Federal Criminal Court nor the military commissions will allow into evidence statements that result from torture or cruel, inhuman, and degrading treatment.

3.4.  Extraordinary Rendition

Any chapter on interrogation techniques would be incomplete without at least some mention of those employed in the course of extraordinary renditions, which is examined in detail elsewhere.82

In the mid 1990s, the US developed a rendition programme.83 It was originally designed to move suspects lawfully from one nation to another to face prosecution for terrorism allegations. However, the legal framework was incomplete in that bilateral treaties did not exist between the US and all other nations, or where they (p. 531) did, they were often inadequate or too cumbersome to deal effectively with a case.84 After 9/11, the US began conducting ‘extraordinary renditions’. That is, seizing suspects in one nation extra-judicially and moving them to third nations, CIA ‘black sites’, or Guantánamo Bay, for the purpose of interrogation and prosecution.85

In many cases the interrogation methods used by the third nations violated the international standards and principles described earlier in this chapter. The same was true regarding many of the interrogation methods used by the CIA and its contractors. Bush Administration lawyers believed that US constitutional protections and domestic statutes designed to implement the CAT and the Geneva Conventions did not apply extraterritorially, thereby removing many of the constraints on interrogators. Many critics have argued that through such extraordinary renditions the US effectively sanctioned extra-judicial deprivations of liberty in an effort to allow the use of coercive interrogation methods.86

Although ‘black sites’ have been ordered to be closed, and CIA interrogators must now comply with Geneva Convention-based interrogation standards, extraordinary rendition remains another example of a state trying to deal with a terrorist threat by circumventing the rule of law, with significant negative political, diplomatic, and legal consequences.

4.  Baseline Standards for Interrogations

The basic standard for interrogation in either a law of war or criminal law context is that coercion is not allowed. The Geneva Conventions, traditional LOAC, human rights law, domestic constitutional, and criminal procedure laws all provide for the same standard: no coercion. Likewise, the status of the suspect is irrelevant; it does not matter whether the person is a criminal suspect, a prisoner of war, an ‘unlawful belligerent’, an ‘unprivileged enemy belligerent’, or a terrorist suspect. A detainee is a detainee, and there is no ‘terrorist exception’ to the prohibition against coercion. Finally, the physical location of a detainee is also irrelevant for the purposes of interrogation. It does not matter whether the detainee is on a foreign battlefield or in a domestic civilian holding cell. Freedom from torture and cruel, inhuman, and degrading treatment is not a matter of geography; rather it is a universally accepted principle. Whether this principle can be universally enforced is a more difficult question.

(p. 532) 4.1.  Compliance

From a normative perspective, coercion should never be used in interrogation by either civilian police or military interrogators under any circumstances. From a practical perspective, however, the practice of many parties does not comport with the norm. There is always a lurking temptation to apply pressure to induce a criminal suspect to confess or to pry intelligence from a terrorist suspect. How then can states ensure that the practice of their agents conforms to the rule of law? Interrogations by their nature are undertaken in secrecy. Nor do law enforcement and intelligence agents culturally embrace either transparency or independent, outside oversight. Unless these agents are given strong incentives to discipline themselves—especially legal or political—their interrogation practices are unlikely to comply with the normative values of the law. The three principles set forth below represent a pragmatic approach to how increased adherence to the rule of law might be achieved: setting morality to one side, most policemen and military intelligence officers want the information they collect from a subject to be reliable, admissible in court, and seen as legitimate.

4.2.  Reliability

There is an ongoing, often emotional, public debate as to whether coercion produces reliable intelligence. Some claim that it is the only way to extract information from the most radicalized and dedicated terrorists, some of whom have been trained to resist established, non-coercive interrogation methods. Indeed, one school of thought has argued for the legitimization of coercion, and has even proposed ‘torture warrants’.87 This ignores the significant amount of evidence that many ‘fanatics, martyrs, and heroes’ do not provide any reliable information under torture.88 With other subjects, the act of coercion can often result in various psychological conditions that lead to either heightened resistance or an inability to respond.89

In contrast, opponents to coercive interrogation techniques generally argue that any evidence supporting the utility of coercion is anecdotal, and completely lacking in proof that non-coercive methods would not have yielded the same results. The two most common arguments raised that coercion does not yield reliable information (p. 533) are that subjects of torture or other coercion will say whatever they believe the interrogator wants to hear to stop the pain or avoid the coercion; and that frequently the coercive methods chosen, such as sleep deprivation, can actually make it more difficult for the subject to think clearly and make coherent responses impossible. These opponents argue that there is no empirical evidence that coercive interrogation yields reliable results.90

The consensus of US military interrogators was captured within the Intelligence Interrogation Field Manual 1992 (FM) 34-52: ‘Experience indicates that the use of prohibited techniques is not necessary to gain cooperation of interrogation sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear.’91

US Army interrogation was, and remains today, based upon the premise that the most reliable information is information willingly given. This is a commonly held belief across the professional interrogator community, as is a general professional disdain for physical coercion; coercive interrogations are said to result from a lack of skill on the part of the interrogator.92

The 1992 and current interrogation Field Manuals set forth a series of approaches for the interrogator to use to entice the source to disclose information voluntarily and prohibit coercive methods.93

The direct approach, simply asking questions directly related to the information being sought, is the most frequently used because historically it has proven to be the most effective.94 When coupled with cash or some other incentive, direct questions can be even more productive. When incentives are introduced, however, vetting the intelligence becomes more important given the motivation of the source.

For less cooperative sources, the Field Manual advises interrogators to design an interrogation plan carefully tailored to the particular source. The approaches are intended to manipulate the source, playing on his emotions or personality traits. The initial stages of any interrogation include the development of some kind of rapport between the interrogator and the source to get him comfortable with communicating. The rapport need not necessarily be ‘friendly’ so long as the source is responsive to the interrogator’s questions. The goal is to get him speaking and to (p. 534) guide the conversations using the approach that is most likely to be effective. The interrogator may turn to approaches designed to play on a source’s emotions, perhaps appealing to his love of country or comrades. He may try to convince the source that his cooperation is really in the best interests of his nation, or tribe, or comrades. In other cases it may be more effective to appeal to the source’s frustration and anger at being captured. The interrogator may play on the source’s sense of abandonment. Interrogators may take advantage of the source’s pride by doubting his importance, leading the source to prove his significance or influence by disclosing his knowledge or associates. Conversely, the interrogator may use flattery to encourage him to talk about his achievements.

Even though information was willingly provided, however, does not mean it is necessarily reliable. The source may be lying or speaking what he thinks is the truth, but is for whatever reason mistaken. Thus interrogators use well established tactics, techniques, and procedures to validate the information they collect through interrogation. They might cross-reference the source’s story with intelligence already collected and verified, or they might seek to verify specific factual details. It is the experience of professional military interrogators, however, that information willingly provided is more likely to be reliable, and that it generally requires much less verification than information acquired through coercive approaches.

Finally, it should be noted that while US military interrogation doctrine and training permit deception, trickery, and manipulation, they expressly prohibit coercion. For example, threats of any kind to the detainee or his family are proscribed. From a purely practical perspective, overbearing the will of the source brings the reliability of the intelligence into doubt; it was not information willingly offered up.

4.3.  Admissible Evidence

Criminal law based counter-terrorism legal regimes will support extra-judicial or pre-trial detention of a terrorism suspect for only a limited period of time. Eventually, the suspect will have to be tried for a criminal offence or released. Thus, in addition to generating reliable intelligence, interrogations must develop evidence that is admissible in a criminal court to support the prosecution of the person being interrogated or other actors. Counter-terrorism legal regimes based upon LOAC, such as that of the US, may support the detention of terrorism suspects for longer periods of time with less administrative due process rights for the detainee, but eventually the detainee will have to be released or prosecuted before a military commission or federal criminal court.

As seen above, evidence that is the result of torture or cruel, inhuman, and degrading treatment will not be admitted in a US military commission. A similar standard of whether the state’s agent’s actions ‘shock the conscience’ is used in the US Federal Criminal Court to determine the voluntariness, and thus the admissibility, of (p. 535) the statement.95 An in-depth analysis of this US case law is beyond the scope of this chapter. It must be noted, however, that it is highly likely that this standard would be met if US civilian law enforcement adopted the tactics of either the Israeli GSS per the Landau Report, or the British in Northern Ireland, as previously described, with the consequence that any resulting statements would not be admissible.

Such approaches are of wider applicability internationally, not least to the practices of the 146 signatories to the CAT. In particular, under Article 15, each State Party is obliged to ensure that no statement acquired through torture is used ‘as evidence in any proceedings, except against a person accused of torture’. This language clearly bars the use of torture-based evidence against the source of the statement or anyone else. When the CAT was being drafted, language based upon the UN Torture Declaration96 was included that would have imposed the same blanket prohibition against the use of evidence being derived from cruel, inhuman, and degrading treatment as well. However, that language was subsequently deleted, leaving the matter unsettled as to whether such evidence may be admitted into evidence in a criminal prosecution. Indications are, however, that evidence derived from cruel, inhuman, and degrading treatment is excluded not only from most civilian criminal courts, but from international courts and tribunals as illustrated by the Rules of Evidence and Procedure for the International Criminal Court and the International Criminal Tribunals for the former Yugoslavia and Rwanda.97

Another key area of remaining uncertainty is how nations which are party to the CAT will deal with derivative evidence, that is, evidence which is a product of information collected during interrogations using torture or cruel, inhuman, and degrading treatment. The CAT created the UN Committee Against Torture (UNCAT) to monitor its implementation.98 On this particular issue, in 2003 while reviewing a case involving an extradition from Switzerland to Spain, the UNCAT concluded that any evidence derived from torture is tainted and subject to Article 15 based exclusion.99 As noted above, in 2010 a domestic US federal criminal court excluded the testimony of a witness whose name was provided by the defendant while undergoing coercive interrogation.100

Thus an interrogation that uses torture or cruel, inhuman, and degrading treatment to coerce a subject to disclose information creates several practical problems for any prosecution. First, the information collected will not be admissible against the subject of the interview or anyone else implicated in the statement. Second, evidence (p. 536) collected as a result of a coerced statement may well be excluded from evidence due to it being tainted. Such an exclusionary rule greatly increases the state’s burden in any prosecution of terrorist suspects if coercive interrogation methods were used.

4.4.  Legitimacy

The US Army Field Manual on interrogation that was in effect on 9/11 included the following warning: ‘[r]evelation of use of torture by US personnel will bring discredit upon the US and its armed forces while undermining domestic and international support for the war effort’.101 The events after the revelations of the detainee abuses at Abu Ghraib, Guantánamo Bay, and Bagram Air Base have proven these words prophetic.

The Abu Ghraib photographs have served as a most effective tool for terrorists and insurgents. As former US Navy General Counsel, Alberto Mora, testified in 2008 before the US Senate Armed Services Committee: ‘ … there are serving U.S. flag-rank officers [generals or admirals] who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq—as judged by their effectiveness in recruiting insurgent fighters into combat—are, respectively the symbols of Abu Ghraib and Guantanamo’.102

The effect of these images was also described in this way:

America suffered a huge defeat the moment those photographs became public. Copies of them are now sold in souks from Marrakesh to Jakarta, vivid illustrations of the worst suspicions of the Arab world: that Americans are corrupt and power-mad, eager to humiliate Muslims and mock their values. The acts they document have helped energize the insurgency in Iraq, undermining our rule there and magnifying the risks faced by our soldiers each day. If Osama bin Laden had hired a Madison Avenue public relations firm to rally Arabs hearts and minds to his cause, it’s hard to imagine that it could have devised a better propaganda campaign.103

The follow-on investigations and disclosures revealed that these actions were not simply the actions of a sadistic few. After the legal opinions referenced above104 regarding torture and interrogation were disclosed, it became public knowledge that the US Government had formally approved and adopted coercive interrogation methods as a matter of policy. The US has been roundly criticized both domestically and internationally for these actions. There have even been efforts to criminally prosecute members of the Bush Administration for war crimes in Europe.105 It is (p. 537) difficult to measure the disruptive impact of the US use of coercive interrogation methods on the global counter-terrorism effort, even though it was for a limited period of time.

Setting aside the violation of sovereignty issues raised by the Bush Administration’s extraordinary rendition programme, the use of torture by states to which the US has transferred terrorist suspects also has undermined international counter-terrorist cooperation. For example, Abu Omar was kidnapped in Milan, Italy in 2003 by US agents and transferred to Egypt where he was allegedly beaten, raped, and subjected to electrical shocks to the genitals. He was eventually released in 2007. In 2009 an Italian court found 23 US agents guilty in absentia for kidnapping.106 Another example is the case of Maher Arar. In September 2002, Arar was detained in the US based upon information provided by Canadian law enforcement officials. After 13 days the US transferred107 him to Syria where he was imprisoned for a year and tortured.108 Unlike Abu Omar, Arar was completely exonerated and compensated by the Canadian Government. However, his parallel efforts to hold US Government officials responsible for his detention and abuse failed in US federal courts.109 Domestic US courts cannot, however, insulate the US from the loss of legitimacy in the eyes of the international community. This loss of legitimacy undercuts the efforts to develop international cooperation which is so critical to a true global war on terror.

4.5.  Recommendations

In addition to setting forth the key, universally applicable legal principles for interrogation, this chapter makes the following broad recommendations:

  1. (1)  All states must explicitly reject any form of coercion in their counter-terrorism legal regimes. This must be without qualification or exception. This includes coercive interrogation methods by the state or its proxy, as well as the use of any evidence obtained as a result of coercion.

  2. (2)  States must embrace transparency to the greatest extent possible. Although every counter-terrorism programme is based to some degree upon intelligence that cannot be publicly disclosed, the state must be open about the terrorist threat it faces, and the steps it intends to take to counter that threat. Without transparency the state’s actions will lack legitimacy. This is an ongoing, rather than static, process.

  3. (p. 538)
  4. (3)  Human rights organizations must recognize that a primary function of states is to protect their citizens; recognized throughout this book as legitimate security imperatives. Therefore, not every temporary derogation or declaration of a state of emergency is necessarily an assault upon fundamental human rights.

  5. (4)  In addition to rejecting coercive interrogation as a matter of principle, states must take affirmative steps to ensure that this principle is incorporated into its law enforcement and military cultures. It must be built into institutional doctrine, repeatedly trained at every level, and periodically inspected by oversight authorities.

  6. (5)  Finally, all states and non-governmental organizations involved in assisting other nations in developing, modernizing, or professionalizing their law enforcement and military forces must ensure that the prohibition against coercive interrogation is an essential part of that effort.

5.  Conclusion

Coercive interrogation methods include torture and cruel, inhuman, and degrading treatment. The normative rules regarding coercive interrogation are settled: all of these methods are prohibited by human rights law and LOAC. Furthermore, all established criminal law models prohibit the use of coercion to obtain confessions, and the subsequent admission of such statements into evidence leading to the perception that the terrorist suspect is the victim rather than the criminal.

From a pragmatic perspective coercive interrogation is self-defeating. There is no empirical evidence that these methods produce reliable, actionable intelligence. Nor will evidence collected through coercion be admissible as evidence to support the criminal prosecution of the person coerced. Additionally, the use of coercive interrogation methods undercuts the legitimacy of the state that employs them. In turn, these violations of the rule of law serve as a recruitment tool for the very insurgencies and terrorist networks states are trying to defeat, and obstruct efforts to build more effective international cooperation in the counter-terrorism effort. The bottom line is that a national security regime that violates basic human rights will undercut the legitimacy of the state in the eyes of its own citizenry, and of the world.

Footnotes:

JV Doussa, ‘Reconciling Human Rights and Counter-terrorism—a Crucial Challenge’ (2006) James Cook Univ L Rev 1, 1.

For the purposes of this chapter ‘rule of law’ is defined as ‘a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards’: see Report of the UN Secretary-General, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies’ (2004) UN Doc S/2004/616. Admittedly this is a formal, political, and institutionally focused definition and fails to take into account religious and cultural based societal organizational structures.

See Inquiry into the Treatment of Detainees in US Custody ‘Report of the Committee on Armed Services United States Senate’ (20 November 2008) (Levin Report) 〈http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf〉 accessed 4 February 2011; Central Intelligence Agency Inspector General Special Review, ‘Counterterrorism Detention and Interrogation Activities’ (September 2001–October 2003) (7 May 2004) (CIA IG Report) 〈http://graphics8.nytimes.com/packages/pdf/politics/20090825-DETAIN/2004CIAIG.pdf〉 accessed 4 February 2011. See too P Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values (Palgrave Macmillan, New York 2008).

CIA IG Report (n 3) 92.

B Woodward, ‘Detainee Tortured, Says U.S. Official’ Washington Post (14 January 2009).

T Golden, ‘In U.S. Report, Brutal Details of 2 Afghan Inmates’ Deaths’ New York Times (20 May 2005); A Gibney, Taxi to the Dark Side (THINKFilm, 30 April 2007).

Memorandum for William J Haynes II, General Counsel, Department of Defense, ‘Application of Treaties and Laws to al Qaeda and Taliban Detainees’ (9 January 2002) in KJ Greenberg and JL Dratel (eds), The Torture Papers: The Road to Abu Ghraib (CUP, Cambridge 2005) 38; Memorandum for Alberto Gonzales, Counsel to the President, ‘Standards of Conduct for Interrogation under 18 U.S.C. sects. 2340–2340A’ (1 August 2002) in Greenberg and Dratel (n 7) 172, also 〈http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf〉 accessed 4 February 2011; Memorandum for William J Haynes II, General Counsel, Department of Defense, ‘Military Interrogation of Alien Unlawful Combatants Held Outside the United States’ (14 March 2003) 〈http://www.aclu.org/pdfs/safefree/yoo_army_torture_memo.pdf〉 accessed 4 February 2011.

Memorandum for William J Haynes II, General Counsel, Department of Defense, ‘Application of Treaties and Laws to al Qaeda and Taliban Detainees’ (9 January 2002) in Greenberg and Dratel (n 7) 38.

Memorandum of Alberto Gonzales, Counsel to the President, and William J Haynes II, General Counsel, Department of Defense, ‘Application of Treaties and Laws to Al Qaeda and Taliban Detainees’ (22 January 2002) in Greenberg and Dratel (n 7) 172.

10  Memorandum signed by President George Bush, ‘Humane Treatment of al Qaeda and Taliban Detainees’ (7 February 2002) in Greenberg and Dratel (n 7) 134.

11  Humane Treatment of al Qaeda and Taliban Detainees Memorandum (n 10) para 3.

12  US Department of the Army Field Manual 30-15, Examination of Personnel and Documents (1951); US Department of the Army Field Manual 30-15, Intelligence Interrogation (1967), (1969), (1973) and (1978); US Department of the Army Field Manual 34-52, Intelligence Interrogation (1987); US Department of the Army Regulation 633-50, Prisoner of War Administration (1963); US Army Regulation 190-8, Prisoner of War Administration (1982) and (1985). See generally D Jackson, ‘Interrogation and Treatment of Detainees in the Global War on Terror’ in M Lewis et al, The War on Terror and Laws of War: A Military Perspective (OUP, Oxford 2009).

13  Memorandum of the Department of Defense, Joint Task Force to Guantánamo Bay, Cuba, ‘Counter-Resistance Strategies’ (11 October 2002) 〈http://www.globalsecurity.org/security/library/policy/dod/d20040622doc3.pdf accessed 4 February 2011; Memorandum of William J Haynes II, General Counsel, Department of Defense, ‘Counter-Resistance Techniques’ 〈http://www.gwu.edu/∼nsarchiv/NSAEBB/NSAEBB127/02.12.02.pdf〉 accessed 4 February 2011.

14  See S Gillers, ‘Tortured Reasoning’ (2004) 26 American Lawyer 65; J Bacchus, ‘The Garden’ (2005) 28 Fordham ILJ 308; J Alvarez, ‘Torturing the Law’ (2005) 37 Case Western Reserve JIL 175; J Waldron, ‘Torture and Positive Law: Jurisprudence for the White House’ (2005) 105 Columbia L Rev 1681; H Koh, ‘A World Without Torture’ (2005) 43 Columbia JTL 641; J Paust, ‘Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees’ (2005) 43 Columbia JTL 811; D Amann, ‘Abu Ghraib’ (2005) 153 Univ Pennsylvania L Rev 2085.

15  See the Schlessinger Report, ‘Final Report of the Independent Panel to Review DoD Detention Operations’ (August 2004) 〈http://fl1.findlaw.com/news.findlaw.com/wp/docs/dod/abughraibrpt.pdf〉 accessed 4 February 2011; the Taguba Report, ‘Article 15-6 Investigation of the 800th Military Police Brigade’ 〈http://www.npr.org/iraq/2004/prison_abuse_report.pdf〉 accessed 4 February 2011; the Fay-Jones Report, ‘Investigation of Intelligence Activities at Abu Ghraib’ 〈http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/dod/fay82504rpt.pdf〉 accessed 4 February 2011; and the Department of Defense Inspector General’s Report, ‘Review of DoD Directed Investigations of Detainee Abuse’ (25 August 2006) 〈http://www.dodig.mil/fo/Foia/ERR/06-INTEL-10-part%201.pdf〉 accessed 4 February 2011.

16  US Army Field Manual 2–22.3, ‘Human Intelligence Collector Operations’ (12 March 2006) 〈http://library.enlisted.info/field-manuals/series-1/FM2_22.3/FM2-22.3.pdf〉 accessed 30 July 2011; J Goldsmith, The Terror Presidency (Norton Press, New York 2005).

18  Executive Order 13491 (22 January 2009) 〈http://edocket.access.gpo.gov/2009/pdf/E9-1885.pdf〉 accessed 2 February 2011.

19  In United States v Ahmed Ghailani S10 98 Crim 1023 (5 October 2010) the accused was prosecuted for participating in terrorist bombings against US Embassies in Africa in 1998 that resulted in hundreds of deaths and injuries. The defendant was later sentenced to life imprisonment: 〈http://www.csmonitor.com/USA/Justice/2011/0125/Ahmed-Ghailani-gets-life-sentence-for-Al-Qaeda-bombing-of-US-embassies〉 accessed 4 February 2011.

20  ‘White House Drafts Executive Order for Indefinite Detention’ Columbia City Paper (26 December 2010) 〈http://www.columbiacitypaper.com/2010/12/26/white-house-drafts-executive-order-for-indefinite-detention/〉 accessed 2 February 2011.

21  A redacted copy of the report was published in (1989) 23 Israel L Rev 146–89 (Landau Report). See also UN Committee Against Torture, ‘Second periodic reports of States parties due in 1996: Israel’ (18 February 1997) CAT/C/33/Add.2/Rev.1 (State Party Report) 〈http://www.unhchr.ch/tbs/doc.nsf/0/653f6da51dc104d68025646400568ed6?Opendocument〉 accessed 2 February 2011.

22  See Landau Report (n 21) 158.

23  UN Committee Against Torture, ‘Initial Reports of States Parties, Israel.02/04/1994’ (4 February 1994) CAT/C/16/Add. 4; UN Committee Against Torture, ‘Second Periodic Report of States Parties, Addendum Israel, 02/181997’ (18 February 1997) CAT/C/33/Add. 2./Rev.1; UN Committee Against Torture, ‘Special periodic report’ (6 March 1998) CAT/C/33/Add.3.

24  Public Committee Against Terror in Israel v The State of Israel (Judgment 15 July 1999) HCJ 5100/94 〈http://elyon1.court.gov.il/files_eng/94/000/051/A09/94051000.a09.htm〉 accessed 4 February 2011. The techniques included shaking, a stress position called the ‘Shaback’ position, using excessively tight handcuffs, and sleep deprivation. Although hailed by some as an end to state sanctioned coercion, the judgment has been criticized for continuing to recognize necessity as a possible defence for interrogators who continue to use force. A Laursen, ‘Israel’s Supreme Court and International Human Rights Law: The Judgment on “Moderate Physical Pressure”’ (2000) 69 Nordic JIL 413.

25  See Public Committee Against Terror in Israel v The State of Israel (n 24) para 23.

26  Ireland v United Kingdom Series A no 25 (1979–1980) 2 EHRR 25.

27  Memorandum for William J Haynes II, ‘Military Interrogation of Alien Unlawful Combatants Held Outside the United States’: ‘Thus, even though the court had concluded that the techniques produce “intense physical and mental suffering” and “acute psychiatric disturbances,” they were not of sufficient intensity and cruelty to amount to torture’ 〈http://www.justice.gov/olc/docs/memo-combatantsoutsideunitedstates.pdf〉 70 accessed 4 February 2011.

28  See generally ME O’Connell, ‘Affirming the Ban on Harsh Interrogation’ (2005) 66 Ohio State LJ 1231, 1249.

29  See generally D Jinks, ‘September 11 and the Laws of War’ (2003) 28 Yale JIL 1; R Sievert, ‘War on Terrorism or Global Law Enforcement Operation?’ (2003) 78 Notre Dame L Rev 307; H Koh, ‘We have the Right Courts for Bin Laden’ New York Times (23 November 2001).

30  R Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (CUP, Cambridge 2005)14; Y Ma, ‘A Comparative View of the Law of Interrogation’ (2007) 17 ICrimJR 5.

31  Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR).

32  For the purposes of this chapter ‘human rights’ refers to those rights enumerated in the UDHR. This document was the UN’s effort to define the term ‘fundamental human rights’ used in the Preamble to the UN Charter. Since its adoption, the UDHR has been relied upon and referenced by virtually every international human rights convention and study. Using the UDHR is also limiting. Presuming its legitimacy does not address series of criticisms: it has a Western, individual based, state-centric focus; it was crafted principally by the ‘victor nations’ shortly after World War II during the occupation of Germany, Japan, and parts of the Middle East, and during the ongoing colonial period in Africa; and it fails to take into account regional, ethnic, cultural and religious based values, or what has come to be known as ‘cultural relativism’. See generally R Pannikar, ‘Is the Notion of Human Rights a Western Concept?’ (1982) 120 Diogenes 75; K Dalacoura, Islam, Liberalism and Human Rights (IB Tauris, New York 1998); H Bielefeldt, ‘ “Western” versus “Islamic” Human Rights Conceptions?: A Critique of Cultural Essentialism in the Discussion in Human Rights’ (2000) 28 Political Theory 90. These debates are beyond the scope of this chapter.

33  International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

34  Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 3; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) OAS Treaty Series No 36 (1969) art 5.2; African Charter on Human and People’s Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (African Charter) art 5; Cairo Declaration on Human Rights in Islam, UN GAOR World Conference on Human Rights 4th Session UN Doc.A/CONF.157/PC/62/Add.18 (1993) 5 August 1990, agenda item 5, art 7(b).

35  UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT).

36  Art 1 CAT.

37  International Committee of the Red Cross, ‘What is the Definition of Torture and Ill Treatment?’ (Info Resources, 15 February 2005) 〈http://www.icrc.org/Web/eng/siteeng0.nsf/html/69MJXC〉 accessed 4 February 2011.

38  Ireland v United Kingdom (n 26). See also Tomasi v France (App no 12850/87) Series A no 241-A (1993) 15 EHRR 27; Ribitsch v Austria (App no 18896/91) (1995) Series A no 336 (1996) 21 EHRR 573; Loayza Tamayo Case (Provisional Measures in the Matter of Peru) Inter-American Court of Human Rights (IACtHR) (13 September 1996); Caesar v Trinidad and Tobago, IACtHR (10 October 2001).

39  See further B Saul, ‘Criminality and Terrorism’, Chapter 6 of this volume.

40  AI, ‘Security and Human Rights: Counter-Terrorism and the United Nations’ (AI Report) (3 September 2008) AI-Index IOR 40/019/2008 17.

41  AI Report (n 40) 17–18.

42  See generally AI Report (n 40); AI, ‘Saudi Arabia, Assaulting Human Rights in the Name of Counterterrorism’ (Report) (22 July 2009) AI-Index MDE 23/009/2009.

43  See Royal Decree 39–2001 on Criminal Procedures Law, Saudi Arabia, arts 2, 35, and 102 〈http://www.glin.gov/view.action?glinID=200803〉 accessed 4 February 2011.

45  Miranda v Arizona (n 44). See also W White, ‘What is an Involuntary Confession Now?’ (1998) 50 Rutgers L Rev 2001.

46  Canadian Charter of Rights and Freedoms, the Constitution Act 1982 (enacted by the Canada Act 1982 [UK] c 11; proclaimed in force 17 April 1982); amended by the Constitution Amendment Proclamation 1983, SI/84-102 (effective 21 June 1984); amended by the Constitution Amendment 1993 [New Brunswick] SI/93-54, Can Gaz Part II (7 April 1993, effective 12 March 1993) 〈http://laws.justice.gc.ca/en/charter/〉 accessed 6 February 2011.

47  Ma (n 30) 8.

48  Ma (n 30) 16.

49  Ma (n 30) 18.

50  Ma (n 30) 18.

51  Ma (n 30) 20.

52  Criminal Justice and Public Order Act 1994.

53  Peters (n 30) 13–14.

54  Landau Report (n 21).

55  Executive Order 13491 (n 18).

56  Arrêt n° 5700 du 19 octobre 2010 (10-82.306) Cour de cassation—Chambre criminelle 〈http://www.courdecassation.fr/jurisprudence_2/chambre_criminelle_578/5700_19_17829.html〉 accessed 4 February 2011.

57  Gillan and Quinton v United Kingdom (App no 4158/05) (2010) 50 EHRR 45.

58  GW Bush, ‘Address to a Joint Session of Congress and the American People: 20 September 2001’ 〈http://www.presidentialrhetoric.com/speeches/09.20.01.html〉 accessed 4 February 2011.

59  Authorization for Use of Military Force, Pub L No 107-40, 115 Stat 224 (2001) 〈http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html〉 accessed 2 February 2011.

60  H Koh, Department of State Legal Advisor, remarks to the 104th Annual Meeting of the American Society of International Law (25 March 2010) 〈http://www.insidejustice.com/law/index.php/intl/2010/03/26/p254〉 accessed 4 February 2011.

61  Koh (n 60).

62  Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 12 October 1950) (GC I); Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) (GC II); Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) (GC III); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) (GC IV). These and other key provisions of the law of armed conflict are examined in J Pejic, ‘Armed Conflict and Terrorism: There is a (Big) Difference’, Chapter 7 of this volume.

63  See, for example, Hague Convention (IV) Respecting the Laws and Customs of War on Land, Annex, Regulations Respecting the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) 36 Stat 2277, 1 Bevans 631 which simply states that prisoners of war ‘must be humanely treated’ and offers no further standard of treatment.

64  Convention Relative to the Treatment of Prisoners of War, 27 July 1929, 47 Stat 2021, 118 LNTS 343 (Convention Relative to the Treatment of Prisoners of War).

65  Art 5 Convention Relative to the Treatment of Prisoners of War.

66  Art 17 GC III.

67  Art 27 GC IV.

68  Common art 2.

69  Common art 3(1)(a) and (c).

70  Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) (AP I) art 75.

71  Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) (AP II) art 4. Although the US has not ratified either of the Additional Protocols, the general consensus is that the standards of AP I have been so widely accepted by states that it amounts to customary international law. See M Matheson, ‘Session One: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions’ (1987) Am Univ JILP 419. The standard of treatment for all detainees by the US now meets or exceeds those set forth in art 75 AP I.

72  D Jackson (n 12) 126–37.

73  Department of the Army Headquarters, ‘Intelligence Interrogation’ US Army Field Manual 34-52 (28 September 1992) 〈http://www.fas.org/irp/doddir/army/fm34-52.pdf〉 accessed 4 February 2011 (Field Manual 34–52).

74  US Department of Defense, ‘Directive 5100.77 Department of Defense Law of War Program’ (9 December 1998) 〈http://biotech.law.lsu.edu/blaw/dodd/corres/pdf2/d510077p.pdf〉 accessed 3 February 2011.

75  See further C Kannady, P Masciola, and M Paradis, ‘The “Push-Pull” of the Law of War: the Rule of Law and Military Commissions’, Chapter 25 of this volume.

76  GW Bush, ‘Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism’ (Executive Order Military Order of 13 November 2001) 〈http://www.fas.org/irp/offdocs/eo/mo-111301.htm〉 accessed 4 February 2011.

77  Hamdan v Rumsfeld (n 17).

78  Military Commissions Act 2006 HR-6167, 10 USC section 948 (2006) (MCA 2006).

79  MCA 2006 (n 79) section 948r.

80  Military Commissions Act 2009, Title XVIII, National Defense Authorization Act for Fiscal Year 2010 (123 Stat 2190) (28 October 2009) (MCA 2009).

81  For a general comparison of MCA 2006 and 2009 see JK Elsea, ‘The Military Commission Act of 2009: Overview and Legal Issues’ (Congressional Research Service 6 April 2010) 〈http://www.fas.org/sgp/crs/natsec/R41163.pdf〉 accessed 2 February 2011.

82  See further H Duffy and S Kostas, ‘Extraordinary Rendition: a Challenge for the Rule of Law’, Chapter 21 of this volume.

83  MJ Garcia, ‘Renditions: Constraints Imposed by Laws on Torture’ (Congressional Research Centre 8 September 2009) 〈http://www.fas.org/sgp/crs/natsec/RL32890.pdf〉 accessed 2 February 2011.

84  Frontline Stories, ‘Rendition Timeline Part 2: 11 September 2001: U.S. Attacked, New Legal Framework Begins’ 〈http://www.pbs.org/frontlineworld/stories/rendition701/timeline/timeline_2.html〉 accessed 4 February 2011.

85  D Weissbrudt and A Bergquist, ‘Extraordinary Rendition: A Human Rights Analysis’ (2006) 19 Harvard HRJ 123.

86  See generally J Mayer, ‘Outsourcing Torture’ New Yorker (14 February 2005).

87  See generally EA Posner and A Vermeule, ‘Should Coercive Interrogation be Legal?’ (2005–2006) 104 Michigan L Rev 671; AM Dershowitz, Why Terrorism Works, Understanding the Threat, Responding to the Challenge (Yale University Press, New Haven 2002); A Moher, ‘The Lesser of two Evils? An Argument for Judicially Sanctioned Torture in a Post 9/11 World’ (2004) 26 Thomas Jefferson L Rev 469.

88  JM Arrigo, ‘A Consequentialist Argument Against Torture Interrogation of Terrorists’ (Joint Services Conference on Professional Ethics 30–31 January 2003) 〈http://www.au.af.mil/au/awc/awcgate/jscope/arrigo03.htm〉 accessed 4 February 2011.

89  Arrigo (n 88).

90  See generally O’Connell (n 28); DM Rejali, Torture and Modernity: Self, Society and State in Modern Iran (Westview, Boulder, CO 1994). See also J McCain, ‘Torture’s Terrible Toll’ Newsweek (21 November 2005) 〈http://www.newsweek.com/2005/11/20/torture-s-terrible-toll.html〉 accessed 4 February 2011.

91  Field Manual 34–52 (n 73) 1–8.

92  See generally RT Toliver, The Interrogator: The Story of Hans-Joachim Scharff: Master Interrogator of the Luftwaffe (Schiffer Publishing, Atglen, PA 1997).

93  Field Manual 34–52 (n 73) and Field Manual 2–22.3 (n 16).

94  Field Manual 34–52 (n 73) 3–14.

95  Rochin v California 342 US 165 (1952).

96  Art 12 CAT.

97  S Zappala, Human Rights in International Criminal Proceedings (OUP, Oxford 2005).

98  Art 17 CAT.

99  GK v Switzerland (12 May 2003) CAT/C/30/D/219/2002.

100  United States v Ahmed Ghailani (n 19).

101  Field Manual 34-52 (n 74) 1–8.

102  Levin Report (n 3) xii.

103  P Carter, ‘The Road to Abu Ghraib’ Washington Monthly (November 2004) 〈http://www.washingtonmonthly.com/features/2004/0411.carter.html〉 accessed 4 February 2011.

104  See Memoranda of 9 January 2002, 1 August 2002, and 14 March 2003 (fn 7).

105  A Zagorin, ‘Charges Sought Against Rumsfeld Over Prison Abuse’ Time Magazine (10 November 2006) 〈http://www.time.com/time/nation/article/0,8599,1557842,00.html〉 accessed 4 February 2011.

106  J Hooper, ‘Italian Court finds CIA Agents Guilty of Kidnapping Terrorism Suspect’ Guardian (4 November 2009) 〈http://www.guardian.co.uk/world/2009/nov/04/cia-guilty-rendition-abu-omar〉 accessed 4 February 2011.

107  The US position was that he was ‘deported’ while others label his transfer a ‘rendition’.

108  Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, ‘Report of the Events Relating to Maher Arar’ (Canadian Government Publishing 18 September 2006) 〈http://www.fedpubs.com/subject/govern/arar.htm〉 accessed 2 February 2011.

109  W Richey, ‘Supreme Court refuses Maher Arar Torture Case’ 〈http://www.csmonitor.com/USA/Justice/2010/0614/Supreme-Court-refuses-Maher-Arar-torture-case〉 accessed 4 February 2011.