consistently with the principle of human treatment of all detainees.366 Nevertheless,
ODIHR remains concerned about the possibility for abuse that some of the techniques
authorized by the Manual entail, in particular in Appendix M367 which may result in
practices amounting to torture or cruel, inhuman or degrading treatment or punishment.
SCOPE OF THE PROHIBITION OF TORTURE AND ILL-TREATMENT
209. Following the 9/11 attacks, the Bush administration interpreted several existing provisions
against torture and ill-treatment as non-applicable to alien enemy combatants held
overseas, including Guantánamo detainees. A memorandum, dated early 2002, first
concluded that the Geneva Conventions did not apply to the United States’ conflict with al
Qaeda and that Common Article 3 did not apply to either the conflict with al Qaeda or with
the Taliban. President Bush nonetheless committed to treating detainees humanely and, “to
the extent appropriate and consistent with military necessity, in a manner consistent with
the principles of [the] Geneva [Conventions]”.368
210. Subsequent legal opinions stressed that the prohibition of cruel, inhuman or degrading
treatment or punishment did not apply to aliens detained abroad,369 and that some of the
previously authorized detention and interrogation techniques would not violate Article 16
of the CAT,370 the War Crimes Act, the DTA or the requirements of Common Article 3,
even when used in combination.371 On 20 July 2007, following the Supreme Court’s
366
The United States specified, in particular, that the four-hour standard is not a daily limit, but rather a minimum standard. It is
not intended to mandate 30 days of separation with only four hours of sleep per day, nor would it allow 40 continuous hours of
interrogation with only 4 hours of sleep on either end. US comments to the draft report.
367
UN CAT, Concluding observations on the combined third to fifth periodic reports of the United States of America, op. cit.,
note 107, para. 17.
368
George W. Bush, “Memorandum: ‘Humane Treatment of Taliban and al Qaeda detainees’”, op. cit., note 12, paras. 2(a), 2(c),
3.
369
See, for instance, United States Principal Deputy Assistant Attorney General Stephen G. Bradbury, “Memorandum for John
A. Rizzo, Senior Deputy Counsel, Central Intelligence Agency, ‘Application of United States Obligations Under Article 16 of the
Convention Against Torture to Certain Techniques That May Be Used in the Interrogation of High Value al Qaeda Detainees’”,
30 May 2005, p. 2, <http://www2.gwu.edu/~nsarchiv/torture_archive/docs/Bradbury%20memo.pdf>: stating that “Article 16 [of
the CAT] is inapplicable to the CIA’s interrogation practices” and that in light of US reservations to the CAT, “[t]here is a strong
argument that (…) the Senate intended to limit the scope of United States obligations under Article 16 to those imposed by the
relevant provisions of the Constitution. As construed by the courts, the Fifth Amendment does not apply to aliens outside the
United States. (…) For these reasons, (…) the interrogation techniques where and as used by the CIA are not subject to, and
therefore do not violate, Article 16.”
370
Ibid., pp. 39-40.
371
See, for instance, United States Principal Deputy Assistant Attorney General Steven G. Bradbury, "Memorandum for John A.
Rizzo, Acting General Counsel, Central Intelligence Agency, ‘Application of the War Crimes Act, the Detainee Treatment Act,
and Common Article 3 of the Geneva Conventions to Certain Techniques That May Be Used by the CIA in the Interrogation of
High Value al Qaeda Detainees’”, 20 July 2007, pp. 3-4,
<http://www.justice.gov/sites/default/files/olc/legacy/2009/08/24/memo-warcrimesact.pdf>. The Office of Legal Counsel had
previously concluded that the same techniques did not violate the Torture Convention Implementation Act. See, for instance,
United States Principal Deputy Assistant Attorney General Steven G. Bradbury, “Memorandum for John A. Rizzo, Senior
Deputy General Counsel, Central Intelligence Agency, ‘Application of 18 U.S.C. §§ 2340-2340A to the Combined Use of
Certain Techniques in the Interrogation of High Value al Qaeda Detainees’”, No. 12, 10 May 2005,
<http://www.justice.gov/sites/default/files/olc/legacy/2013/10/21/memo-bradbury2005-2.pdf>; United States Principal Deputy
Assistant Attorney General Steven G. Bradbury, “Memorandum to John A. Rizzo, Senior Deputy General Counsel, Central
Intelligence Agency, ‘Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of
a High Value al Qaeda Detainee’”, 10 May 2005, No. 13,
<http://www.justice.gov/sites/default/files/olc/legacy/2013/10/21/memo-bradbury2005-3.pdf>.
88
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