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Interrogation of Guantanamo Bay Detainees (last updated November 20, 2004) (back to top)
This episode concerns the interrogation of a person who was believed to be a member of al-Qaeda, which he was not. Under the Bush administration's policy, members of al-Qaeda are not protected by Third Geneva Convention and can be interrogated according to techniques specifically approved by Secretary of Defense Donald Rumsfeld in April 2003 for use in Guantanamo Bay.
Some of the techniques permitted under Rumsfeld's policy include :
- "Direct: Asking straightforward questions."
- "Incentive/Removal of Incentive: Providing a reward or removing a privilege, above and beyond those that are required by the Geneva Convention from detainees. [Caution: Other nations that believe that detainees are entitled to POW protections may consider that provision and retention of religious items [e.g., the Koran] are protected under international law [see, Geneva III, Article 34]. Although the provisions of the Geneva Convention are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of the technique."
- "Fear Up Harsh: Significantly increasing the fear level in a detainee."
- "Pride and Ego Down: Attacking or insulting the ego of a detainee, not beyond the limits that would apply to a POW."
- "Mutt and Jeff: A team consisting of a friendly and harsh interrogator. The harsh interrogator might employ the Pride and Ego Down technique. [Caution: Other nations that believe POW protections apply to detainees may view this technique as inconsistent with Geneva III, Article 13 which provides that POWs must be protected against acts of intimidation. Although the provisions of Geneva are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of the technique."
- "Dietary Manipulation: Changing the diet of a detainee; no intended deprivation of food or water; no adverse medical or cultural effect and without intent to deprive subject of food or water, e.g., hot rations to MREs."
- "Environmental Manipulation: Altering the environment to create moderate discomfort [e.g., adjusting temperature or introducing an unpleasant smell. Conditions would not be such that they would injure the detainee. Detainee would be accompanied by interrogator at all times. [Caution: Based on court cases in other countries, some nations may view application of this technique in certain circumstances to be inhumane. Consideration of these views should be given prior to use of this technique.]"
- "False Flag: Convincing the detainee that individuals from a country other than the United States are interrogating them."
- "Isolation: Isolating the detainee from other detainees while still complying with basic standards of treatment. [Caution: The use of isolation as an interrogation technique requires detailed implementation instructions, including specific guidelines regarding the length of isolation, medical and psychological review, and approval for extensions of the length of isolation by the appropriate level in the chain of command. This technique is not known to have been generally used for interrogation purposes for longer than 30 days. Those nations that believe detainees are subject to POW protections may view use of this technique as inconsistent with the requirements of Geneva III, Article 13 which provides that POWs must be protected against acts of intimidation; Article 14 which provides that POWs are entitled to respect for their person; Article 34 which prohibits coercion and Article 126 which ensures access and basic standards of treatment. Although the provisions of Geneva are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of the technique."
Such techniques are based on the U.S. government's distinction between members of al-Qaeda and the Taliban. Under the policy announced in early February 2002, all Taliban soldiers are considered prisoners of war and all al-Qaeda fighters are considered unlawful combatants, a distinction that determines the detainees' rights under international law. "Prisoners of war" are protected by the Third Geneva Convention -- adopted by the international community in 1949 and ratified by the United States in 1955 -- and can thus refuse to answer most questions, cannot be tortured, have religious freedom, and must be quartered in conditions equal to the United States forces at the same location. "Unlawful combatants," on the other hand, lack such rights.
Given the distinction, Secretary of Defense Donald Rumsfeld approved various interrogation techniques specifically for use at Guantanamo. He approved some techniques in December 2002, but rescinded most of the techniques considered more aggressive a month later but allowed for use if he specifically approved a request for such use. He then approved a new set of techniques in April 2003, again limiting the techniques' use to Guantanamo.
Some of these techniques spread from Guanatamano to Afghanistan and to Iraq, helping result in some of the confusion that has been attributed to the abuses at Abu Ghraib prison in Iraq.
Detainees are now permitted to petition for their release, following a June 2004 decision by the United States Supreme Court that the federal habeas statute that gives prisoners the right to challenge their custody applied to aliens detained by the United States in a territory over which it exercises considerable power, if not ultimate sovereignty. This case was brought by two Australian citizens and 12 Kuwaiti citizens who were captured fighting in Afghanistan and had been held at Guantanamo Bay since early 2002.
White House spokesman Scott McClellan said on June 30 in response to this decision (transcript on-line here) that the government was implementing a process that would review detainees' status on an annual basis. "We respect the court's decision, and that's why we're moving forward quickly to put a process in place to address those concerns. But we want to do so in a way that is consistent with the constitutional responsibility of the President to exercise his authority during a time of war."
As far as the treatment of prisoners, administration officials have long defended the facilities at Guantanamo Bay as humane and within the spirit of the Geneva Convention's protections, regardless of what status a detainee officially has. In a January 22, 2002 press briefing, Rumsfeld said that treatment of inmates at Camp X-Ray "is proper, it's humane, it's appropriate, and it is fully consistent with international conventions. No detainee has been harmed, no detainee has been mistreated in any way. And the numerous articles, statements, questions, allegations and breathless reports on television are undoubtedly by people who are either uninformed, misinformed, or poorly informed."
Still, others have questioned the treatment of detainees.
Sources: A Department of Defense news release collecting interrogation-related documents is on-line here.
The Brady Rule (last updated October 16, 2004) (back to top)
Prosecutors are required by the U.S. Supreme Court’s rule in the 1963 case of Brady v. Maryland, 373 U.S. 83, to disclose all evidence that “if made available, would tend to exculpate [the accused] or reduce the penalty.”
Bigamy (last updated October 16, 2004) (back to top)
This case seems to evoke a 2001 conviction of a Utah man for bigamy, but without the religious and potential child-abuse connotations of that real-life case.
In 2001, Tom Green, then 52 and reportedly having five wives and 29 children, was convicted in Utah of bigamy and of child rape; one of his wives was reportedly 13 years when they married and first had sex. Utah law makes bigamy a crime punishable by up to five years in prison, and Green was the first person prosecuted under the law in decades. Green claimed that bigamy was consistent with his religious beliefs as a Mormon.
The Church of Latter Day Saints, commonly called the Mormon Church, did once recognize polygamy as a legitimate practice and its founder, Prophet Joseph Smith, condoned it during the 1830s and 1840s. However, the Church disavowed polygamy in 1890 in the face of governmental pressure and it now holds that bigamists and polygamists are to be excommunicated.
"This Church has nothing whatever to do with those practicing polygamy. They are not members of this Church … If any of our members are found to be practicing plural marriage, they are excommunicated, the most serious penalty the Church can impose," President Gordon B. Hinckley said in a 1998 statement available on the Church's website.
Green and others have long challenged laws criminalizing plural marriages as an unconstitutional restriction on Mormons' First Amendment rights of religious expression. The American Civil Liberties Union reportedly supports this position; according to the ACLU of Utah's website, the ACLU "believes that criminal and civil laws prohibiting or penalizing the practice of plural marriage violate constitutional protections of freedom of expression and association, freedom of religion, and privacy for personal relationships among consenting adults."
Some have tried linking questions as to the legal validity of anti-polygamy laws to the Supreme Court's 2003 decision that a Texas law outlawing sodomy was unconstitutional. Senator Rick Santorum was quoted in April 2003 as expressing worries that such a Supreme Court decision would set a precedent that could undermine other sex-related laws regarding bigamy or incest. In an April 22, 2003 statement, Santorum said that his concern was simply that "if such a law restricting personal conduct is held unconstitutional, so could other existing laws. Again, my discussion with the Associated Press was about the Supreme Court privacy case, the constitutional right to privacy in general, and in context of the impact on the family. I am a firm believer that all are equal under the Constitution. My comments should not be misconstrued in any way as a statement on individual lifestyles."
No matter what one thinks of the Supreme Court's decision in Lawrence v. Garner, the Supreme Court is unlikely to overturn anti-polygamy laws any time soon. For one thing, anti-polygamy laws are clearly distinguishable from anti-sodomy laws; anti-polygamy laws are not about preventing consensual sexual behavior but about preventing someone from getting the state's approval for more than one life partner and thus should not be treated the same.
Sources: The Church of Latter-Day Saints' position on polygamy is on-line here. Richard Posner & Katharine B. Silbaugh, A Guide to America's Sex Laws (University of Chicago Press, 1996). Senator Rick Santorum's April 22, 2003 press release was available via his website on-line here. The Supreme Court's docket for Lawrence & Garner v. Texas is on-line here.
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