U.S. Treatment of Prisoners in Iraq: Selected Legal Issues
Released: 2005-10-27T00:00:00

International Law Protecting Prisoners

The international law of armed conflict, in particular, those parts relating to belligerentoccupation, applies in Iraq. (4) The four Geneva Conventions of 1949 (5) and the HagueRegulations (6) play animportant role. Other international law relevant to human rights and to the treatment of prisonersmay also apply. For example, the International Covenant on Civil and Political Rights prohibits"cruel, inhuman or degrading treatment." (7) The Convention Against Torture (CAT) is also relevant. (8)

Protection of Prisoners under the Geneva Conventions of 1949

The purpose of the four Geneva Conventions of 1949 is to mitigate the harmful effects of waron all persons who find themselves in the hands of a belligerent party. Each of the conventionsprovides specific protections for a defined category of persons who are not, or are no longer, takingpart in hostilities, including those who are detained for any reason. Whatever status a particulardetainee may be assigned, the Geneva Conventions prohibit torture and inhumane or degradingtreatment in all circumstances, including for purposes of interrogation.

Prisoners of War (POW). POW status under thethird Geneva Convention ("GPW") offers the highest level of protection, including the right to betried by court martial (or national court, if a soldier of the Detaining Power could be tried that way)if accused of a crime. In case of doubt as to whether a particular captive is entitled to POW status,the Detaining Power must treat the detainee as a POW until a competent tribunal determines thestatus of the individual. (GPW Article 5).

Article 13, GPW, provides that "prisoners of war must at all times be protected, particularlyagainst acts of violence or intimidation and against insults and public curiosity." Article 14 states thatprisoners of war "are entitled in all circumstances to respect for their persons and their honor."Article 17 states that "[n]o physical or mental torture, nor any other form of coercion, may beinflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of warwho refuse to answer may not be threatened, insulted, or exposed to any unpleasant ordisadvantageous treatment of any kind." Interrogators are permitted to ask questions, but POWs arerequired to divulge only their name and limited identifying information. Tactics such as trickery orpromises of improved living conditions are not foreclosed. (9)

Civilians Detainees. Civilians who inhabitoccupied territory are "protected persons" under the fourth Geneva Convention ("GC"), (10) and are entitled underarticle 27 "in all circumstances, to respect for their persons, their honor, their family rights, theirreligious convictions and practices, and their manners and customs." While an occupying power ispermitted to "take such measures of control and security in regard to protected persons as may benecessary as a result of the war," Article 27 provides further that "[t]hey shall at all times behumanely treated, and shall be protected especially against all acts of violence or threats thereof andagainst insults and public curiosity." Article 32 forbids any "measure of such a character as to causethe physical suffering or extermination of protected persons in their hands. . . [including] not only. . . murder, torture, corporal punishment, mutilation and medical or scientific experiments notnecessitated by the medical treatment of a protected person but also to any other measures ofbrutality whether applied by civilian or military agents."

Civilians may be detained or interned by an occupying power only if "security requirementsmake such a course absolutely necessary." (GC art. 42). Internment or assigned residence is themost severe measure allowed in the cases of protected civilians who pose a definite security threat(GC art. 41(1)), and these measures are to be reviewed by a court or administrative board at leasttwice annually. (GC art. 43). Article 31 provides that "[n]o physical or moral coercion shall beexercised against protected persons, in particular to obtain information from them or from thirdparties."

Protected civilians may be imprisoned as a punitive measure only after a regular trial, subjectto the protections in articles 64 through 77. Additionally, article 33 provides that "[c]ivilians maynot be punished for an offence he or she has not personally committed," and prohibits all forms ofcollective penalties and intimidation.

There is also a prohibition against removing protected persons from occupied territory. GCart. 49 states:

Individual or mass forcible transfers, as well as deportations of protected persons fromoccupied territory to the territory of the Occupying Power or to that of any other country,occupied or not, are prohibited, regardless of their motive.

There is an exception that allows the temporary evacuation of an area when absolutely necessary forthe security of the population or for imperative reasons of military necessity. However, evacueesare not to be transported outside the occupied territory unless such a measure is unavoidable. UnderGC art. 147, the "unlawful deportation or transfer or unlawful confinement of a protected person"is a "grave breach" of the convention. It may also be permissible to relocate persons outside of theoccupied territory when it is to their benefit. GC art. 132 allows parties to the Geneva Conventionsto "conclude agreements for the . . . accommodation in a neutral country . . . certain classes ofinternees, in particular children, pregnant women and mothers with infants and young children,wounded and sick, and internees who have been detained for a long time."

A report that the U.S. Central Intelligence Agency transferred certain detainees outside ofIraq for interrogation purposes has brought some accusations that the United States is in breach ofinternational law. (11) The Administration reportedly relies for legal support on a draft opinion from the JusticeDepartment's Office of Legal Counsel (OLC) construing the prohibition as applying to the expulsionfrom Iraq of persons who have a lawful right to be there, but not to the deportation of illegal aliensin accordance with local law or the temporary removal of persons who have not been charged witha crime to undergo interrogation at some location outside Iraq. (12) Regarding the crux of GCart. 49 as a prohibition on the "forceful uprooting of residents from their homes," (13) the OLC memorandumconcludes that the temporary transfer abroad of protected persons is not among the historical wartimepractices GC art. 49 was intended to alleviate. Thus, it concludes that the relocation of protectedpersons for a "brief but not indefinite" period is permissible so long as the transferee has not beencharged with any offense, but that the treaty's other protections would continue to apply.

Other Detainees. Some argue that "unlawfulcombatants" are neither entitled to POW status nor civilian rights under the GenevaConventions. (14) TheDepartment of Defense has not determined, however, that any of the detainees in Iraq are "unlawfulcombatants." (15) Othersassert that persons who commit hostile acts but are not entitled to POW status have the status ofcivilians. (16) TheDepartment of Defense maintains that the Geneva Conventions have applied in Iraq since the onsetof combat operations, (17) unlike in Afghanistan, apparently indicating that insurgents in Iraq are treated as protected civiliansunder the GC rather than as "unlawful combatants." (18) However, the Administration had earlier determined that theTaliban were covered by the Geneva Conventions, but were nonetheless not entitled to status asPOWs or protected persons because they failed to meet the standards for POW treatment under GPWart. 4. (19) Someobservers have argued that this apparent inconsistency is at least partially to blame for the confusionwith respect to the permissibility of harsh interrogation techniques in detention facilities in Iraq. Ithas recently been reported that the Administration considers non-Iraqi detainees to be excluded fromthe status of "protected persons." (20)

GC art. 5 provides some exceptions for the treatment of protected persons deemed securityrisks (21) :

Where in occupied territory an individual protectedperson is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile tothe security of the Occupying Power, such person shall, in those cases where absolute militarysecurity so requires, be regarded as having forfeited rights of communication under the presentConvention. (22)

In each case, such persons shall nevertheless be treatedwith humanity, and in case of trial, shall not be deprived of the rights of fair and regular trialprescribed by the present Convention. They shall also be granted the full rights and privileges of aprotected person under the present Convention at the earliest date consistent with the security of theState or Occupying Power, as the case may be. GC art. 143, providing that the delegates of the Protecting Power or ICRC are to haveunlimited access to prisoner of war camps and internment facilities for interviewing protectedpersons, also contains an exception for security. The Detaining Power may prevent such visits forreasons of "imperative military necessity," but only as an "exceptional and temporary measure." Itis apparently under this exception that ICRC representatives were denied access to some detaineesat Abu Ghraib. (23) However, most undocumented "ghost detainees" appear to have been kept from the view of ICRCrepresentatives by the CIA, operating outside military procedures for documenting detainees. (24)

(25)

(26)

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Such persons may also be protected by article 75 of Additional Protocol I to the GenevaConventions. (28) Article75 provides that "persons who are in the power of a Party to the conflict and who do not benefit frommore favorable treatment under the Conventions . . . shall be treated humanely in all circumstances"and that each state party "shall respect the person, honor, convictions and religious practices of allsuch persons." Paragraph 2 of Article 75 prohibits, "at any time and in any place whatsoever, whethercommitted by civilian or military agents. . . violence to the life, health, or physical or mentalwell-being of persons, in particular . . . torture of all kinds, whether physical or mental," "corporalpunishment," and "mutilation"; "outrages upon personal dignity, in particular humiliating anddegrading treatment . . . and any form of indecent assault"; as well as "threats to commit any of theforegoing acts."

Responsibility for Breaches. The propertreatment of prisoners is the responsibility of the detaining power and the individuals directlyresponsible for their conditions. (29) Mistreatment of prisoners of war may incur individual liabilityunder both international norms and the Uniform Code of Military Justice (UCMJ) and may amountto "grave breaches" under the Geneva Conventions. Grave breaches under the GPW include "wilfulkilling, torture or inhuman treatment, including biological experiments, wilfully causing greatsuffering or serious injury to body or health, compelling a prisoner of war to serve in the forces ofthe hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial " inconnection with an armed conflict. (GPW art. 130). (30) Grave breaches under the GC include "wilful killing, torture orinhuman treatment, including biological experiments, wilfully causing great suffering or seriousinjury to body or health, unlawful deportation or transfer or unlawful confinement of a protectedperson, . . . or wilfully depriving a protected person of the rights of fair and regular trial prescribedin the present Convention . . ."). (GC art. 147).

The Geneva Conventions obligate detaining powers to "enact any legislation necessary toprovide effective penal sanctions for persons committing, or ordering to be committed" gravebreaches, and to "search for persons alleged to have committed, or to have ordered to be committed,. . . grave breaches, and shall bring such persons, regardless of their nationality, before its owncourts." (GPW art. 129). In addition to the foregoing penal provisions for grave breaches, Article129 directs each party to take measures to suppress all violative acts short of grave breaches. Article127 obligates parties to instruct their people, in particular members of the military, about therequirements of the GPW. Article 127 provides further that "[a]ny military or other authorities, whoin time of war assume responsibilities in respect of prisoners of war, must possess the text of theConvention and be specially instructed as to its provisions." Detainees have the right to protest theirtreatment to the detaining power or to a neutral power or organization serving as the protectingpower (ordinarily the International Committee of the Red Cross) (GPW art. 78).

U.S. Military Implementation. U.S. Implementationof the Geneva Conventions with respect to prisoners is found primarily in United States ArmyRegulation (AR) 190-8. (31) AR 190-8 prescribes the rules for the treatment of enemyprisoners of war (EPW), retained personnel (RP -- medical personnel, chaplains, and Red Crossrepresentatives), civilian internees (CI), and other detainees (OD -- whose status has not yet beendetermined but who are to be treated as EPW in the meantime), who are in the custody of the U.S.Armed Forces. Paragraph 1-5 of AR 190-8 sets forth the general standards:

a. U.S. policy, relative to the treatment of EPW, CI andRP in the custody of the U.S. Armed Forces, is as follows:

(1) All persons captured, detained, interned, orotherwise held in U.S. Armed Forces custody during the course of conflict will be givenhumanitarian care and treatment from the moment they fall into the hands of U.S. forces until finalrelease or repatriation.

(2) All persons taken into custody by U.S. forces willbe provided with the protections of the GPW until some other legal status is determined bycompetent authority.

(3) The punishment of EPW, CI and RP known to have,or suspected of having, committed serious offenses will be administered [in accordance with] dueprocess of law and under legally constituted authority per the GPW, GC, the Uniform Code ofMilitary Justice and the Manual for Courts Martial.

(4) The inhumane treatment of EPW, CI, RP isprohibited and is not justified by the stress of combat or with deep provocation. Inhumane treatmentis a serious and punishable violation under international law and the Uniform Code of MilitaryJustice (UCMJ).

b.

c. All persons will be respected as human beings. Theywill be protected against all acts of violence to include rape, forced prostitution, assault and theft,insults, public curiosity, bodily injury, and reprisals of any kind. They will not be subjected tomedical or scientific experiments. This list is not exclusive. EPW/RP are to be protected from allthreats or acts of violence.

d. Photographing, filming, and video taping ofindividual EPW, CI and RP for other than internal Internment Facility administration orintelligence/counterintelligence purposes is strictly prohibited. No group, wide area or aerialphotographs of EPW, CI and RP or facilities will be taken unless approved by the senior MilitaryPolice officer in the Internment Facility commander's chain of command.

e. A neutral state or an international humanitarianorganization, such as the ICRC, may be designated by the U.S. Government as a Protecting Power(PP) to monitor whether protected persons are receiving humane treatment as required by the GenevaConventions. The text of the Geneva Convention, its annexes, and any special agreements, will beposted in each camp in the language of the EPW, CI and RP.

. . .

War Crimes Act. War crimes committed by personsnot subject to the UCMJ may be prosecuted in federal court under the War Crimes Act of 1996. (32) Under that statute, warcrimes committed by or against U.S. nationals are punishable by fine or imprisonment, and a warcrime that results in the death of a victim, is subject to the death penalty. (18 U.S.C. Â§ 2441 (a-b)). War crimes are defined to include grave breaches under the Geneva Conventions and violations ofCommon Article 3. (33) (18 U.S.C. Â§ 2441 (c)(1-3)).

Universal Declaration of Human Rights (UDHR)

The United Nations has a duty under its Charter to the promote "universal respect for, andobservance of, human rights and fundamental freedoms for all without distinction as to race, sex,language or religion." (34) The U.N. Charter obligates U.N. member states to take joint and separate action to promote humanrights and fundamental freedoms for all persons without distinction as to race, sex, language orreligion. (35) The UnitedNations General Assembly adopted the UDHR in 1948 to codify those human rights andfundamental freedoms referred to in the U.N. Charter. (36) The UDHR prohibits arbitrary arrest, detention or exile, (37) as wellas torture and cruel,inhuman or degrading treatment or punishment. (38) Although it is a General Assembly Resolution rather than atreaty, and is therefore technically non-binding, some if not most provisions are considered to becustomary law. (39) TheUDHR does not contain an enforcement mechanism.

International Covenant on Civil and Political Rights (ICCPR)

The International Covenant on Civil and Political Rights was adopted by the United Nationsto set forth in greater detail the Universal Declaration of Human Rights. The ICCPR prohibitsarbitrary detention (40) and "cruel, inhuman or degrading treatment." (41) Article 10 provides that "[a]ll persons deprived of their libertyshall be treated with humanity and with respect for the inherent dignity of the human person." Article 4 provides for derogation "in time of public emergency which threatens the life of the nationand the existence of which is officially proclaimed . . . to the extent strictly required by theexigencies of the situation, provided that such measures are not inconsistent with their otherobligations under international law and do not involve discrimination solely on the ground of race,colour, sex, language, religion or social origin." However, no derogation is permitted from certainrules, including articles 6 (pertaining to the death sentence), 7 (prohibiting cruel, inhuman ordegrading treatment), 8 (paragraphs 1 and 2 -- prohibiting slavery and servitude), 15 (prohibitingretroactive penal sanctions), and 16 (providing all persons are to be recognized as such by the law).

The United States ratified the ICCPR in 1992, subject to a number of reservations,understandings and declarations, including a declaration that the ICCPR is non-self-executing -- thatis, it does not give rise to a private action in court. The United States notified the UN that itinterprets "cruel, inhuman or degrading treatment or punishment" to mean the cruel and unusualtreatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to theConstitution. President Clinton established the Interagency Working Group on Human RightsTreaties to implement the ICCPR and other human rights treaties (42) with the mandate to"provide guidance, oversight, and coordination with respect to questions concerning the adherenceto and implementation of human rights obligations and related matters." (43) In 2001, theresponsibilities of the Working Group were transferred to the newly created National SecurityCouncil (NSC) Policy Coordination Committee (PCC) on Democracy, Human Rights, andInternational Operations. (44) The United States has not officially proclaimed an emergencyor named measures that would derogate from the ICCPR.

U.N. Convention Against Torture (CAT)

In 1994, the United States ratified the United Nations Convention Against Torture and OtherCruel, Inhuman, or Degrading Treatment or Punishment (CAT). (45) CAT requires parties totake measures to prevent torture from occurring within any territory under their respectivejurisdictions, regardless of the existence of "exceptional circumstances," such as a war or threat ofwar, internal political instability or other public emergency. (46) CAT defines torture as

"any act by which severe pain or suffering, whetherphysical or mental, is intentionally inflicted on a person for such purposes as obtaining from him ora third person information or a confession, punishing him for an act he or a third person hascommitted or is suspected of having committed, or intimidating or coercing him or a third person,or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by orat the instigation of or with the consent or acquiescence of a public official or other person actingin an official capacity." (47)

Torture does not include "pain or suffering arising only from, inherent in or incidental to lawfulsanctions." Nor does it include conduct that unintentionally causes severe pain and suffering.

CAT obligates its parties to proscribe and punish acts of torture under their criminal laws,including any attempt to commit torture or any act that constitutes complicity to torture. (48) Additionally, memberStates are to make the crime of torture an extraditable offense under their domestic laws, if necessaryunder their laws pertaining to extradition. (49) States parties also undertake to provide necessary training toprevent torture and "other acts of cruel, inhuman or degrading treatment or punishment which do notamount to torture" to "law enforcement personnel, civil or military, medical personnel, publicofficials and other persons who may be involved in the custody, interrogation or treatment of anyindividual subjected to any form of arrest, detention or imprisonment," (50) and to "keep undersystematic review interrogation rules, instructions, methods and practices as well as arrangementsfor the custody and treatment of persons subjected to any form of arrest, detention or imprisonmentin any territory under its jurisdiction, with a view to preventing any cases of torture." (51) Statements induced bytorture are not to be admitted as evidence in a criminal proceeding against the victim. (52) Victims have a right,under the CAT, to have their allegations investigated by impartial officers and to pursue means ofredress that afford fair and adequate compensation to the victim or the victim's heirs. (53)

U.S. Implementation of CAT. Congress passedlegislation in 1994 to implement the requirements of the CAT (18 U.S.C.Â§ 2340 et seq .). Section2340, along the lines of the CAT, defines torture in subsection (1) as "an act committed by a personacting under the color of law specifically intended to inflict severe physical or mental pain orsuffering (other than pain or suffering incidental to lawful sanctions) upon another person within hiscustody or physical control." "Severe mental pain or suffering" means the prolonged mental harmcaused by or resulting from the infliction or threat to inflict severe physical pain or suffering; the useor threat to use "mind-altering substances or other procedures calculated to disrupt profoundly thesenses or the personality"; threats of imminent death; and threats to inflict the above forms of abuseon third persons. (18 U.S.C. Â§ 2340). Persons who commit violations outside the United States (54) are subject to fine orimprisonment for not more than 20 years, or both, and if death results, violators may receive up tolife in prison or the death penalty. (18 U.S.C. Â§ 2340A). Those convicted of conspiracy to committorture may be punished to the same extent as violators themselves, except that they are not eligibleto receive the death penalty. (18 U.S.C. Â§ 2340A(c)).

Torture Victim Protection Act (TVPA). In 1990,Congress enacted the Torture Victim Protection Act (TVPA) (55) to provide an avenue ofredress for victims of torture overseas. The TVPA created a cause of action for any person to seekrecovery for acts of torture committed under color of foreign law from an individual responsible forthe acts who can be "found" within the United States for the purpose of serving process. (56) Only individuals with acertain level of personal responsibility may be sued under the TVPA; other entities are not amenableto suit. Persons acting as U.S. officials may not be sued under the TVPA, but it may be possible forabused prisoners to bring suit against them under the Alien Tort Statute. (57)

Accountability for Violations

It was established during the Nuremberg Tribunals after World War II that persons whocommit war crimes or crimes against humanity may be held individually accountable, whether theyare members of the military or civilians. (58)

Military Personnel

Members of the armed forces are directly subject to the laws of war and may be tried byinternational or national tribunals for violations. Military personnel stationed overseas are alsosubject to the domestic law of the country where they are stationed, ordinarily under the terms of astatus of forces agreement (SOFA) with the host country. Under current law, U.S. service membersare not subject to legal process in the Iraqi courts unless the government waives their immunity. (59)

International Law. Members of the armed forcesof a party to an international armed conflict may be held individually liable for breaches of the lawof war, including for maltreatment of prisoners under their control, whether such prisoners are undertheir immediate control or indirect control through the chain of command. It is not a defense againsta charge of any grave breach of the Geneva Conventions that an accused was merely followingorders, (60) although suchcircumstances may mitigate liability. Commanders may be held vicariously liable for abusescommitted by persons under their command even where no orders were issued, if it can be proventhat the commander knew or should have known that such abuses were taking place. (61)

U.S. Military Law. Service members are subjectto military jurisdiction under the Uniform Code of Military Justice (UCMJ). They may be tried forserious crimes by general court-martial, and for less serious crimes by summary court-martial orspecial court-martial. Service members may also receive administrative sanctions or non-judicialpunishment.

The mistreatment of prisoners may be punishable as a crime under article 93, UCMJ, whichforbids "cruelty toward, or oppression or maltreatment of, any person subject to [the] orders [or theaccused]. . . ." (62) Article97 prohibits the arrest or detention of any person except as provided by law. (63) The UCMJ also punishesordinary crimes against persons such as assault and assault consummated by a battery, (64) assault with intent tocommit rape, (65) rape, (66) sodomy, (67) indecent assault, (68) murder, (69) manslaughter (70) and maiming. (71) Article 134, UCMJ, alsopunishes, "[t]hough not specifically mentioned in [the UCMJ], all disorders and neglects to theprejudice of good order and discipline in the armed forces, all conduct of a nature to bring discreditupon the armed forces, and crimes and offenses not capital, of which persons subject to [the UCMJ]may be guilty. . . ." (72) Attempts, conspiracy, and solicitation to commit a crime are also punishable. (73)

U.S. Federal Law. U.S. service members are alsosubject to federal statutes and may be tried in federal court to the same extent as civilians. Ordinarily,soldiers who are accused of committing a crime overseas would be prosecuted by court-martial, andwould be protected by the Double Jeopardy Clause (74) from being prosecuted in federal court for the same crime. Soldiers accused of participating in criminal activity with civilians who are covered by the MilitaryExtraterritorial Jurisdiction Act (MEJA) may also be tried in federal court. (75) Former service memberswho committed crimes overseas prior to their separation from military service may also beprosecuted under MEJA.

Civilian Contractors

International Law. The status of contractpersonnel that serve as part of an occupying or peacekeeping force falls into a grey area. Whilecivilians accompanying the armed forces in the field are generally entitled to treatment as prisonersof war if captured by an enemy State, they are considered non-combatants who are not authorizedto take part in hostilities. To the extent that they carry out military functions in support of U.S.forces, they are liable under international law if they commit war crimes. (76) In particular, their actscould amount to "grave breaches" under the Geneva Conventions, giving rise to both personalliability and state responsibility attributable to the United States.

U.S. Federal Law. U.S. contractor personnel andother U.S. civilian employees in Iraq are subject to prosecution in U.S. courts under a number ofcircumstances. Jurisdiction of federal statutes extends to U.S. nationals at U.S. facilitiesoverseas. (77) Inaddition, many federal statutes prescribe criminal sanctions for offenses committed by or againstU.S. nationals overseas, (78) including the War Crimes Act of 1996. (79) The federal prohibitionon torture, 18 U.S.C. Â§ 2340 et seq , applies to acts outside the United States regardless of thenationality of the perpetrator (non-U.S. nationals need only be "found" in the United States to beprosecuted). (80)

Additionally, persons who are "employed by or accompanying the armed forces" overseasmay be prosecuted under the Military Extraterritorial Jurisdiction Act (MEJA) of 2000 (81) for any offense that wouldbe punishable by imprisonment for more than one year if committed within the special maritime andterritorial jurisdiction of the United States. (18 U.S.C. Â§ 3267). Persons "[e]mployed by the armedforces" is defined to include civilian employees of the Department of Defense (DoD) as well as DoDcontractors and their employees (including subcontractors at any tier). (18 U.S.C. Â§ 3267 (1)(A)). The National Defense Authorization Act for FY2005 ( P.L. 108-375 ) Â§ 1088, enacted October 28,2004, expanded the coverage of MEJA over civilian contractors and employees from other federalagencies and "any provisional authority" (e.g., the CPA), to the extent that their employment isrelated to the support of the DoD mission overseas. The amended language will clarify that contractemployees like those working alongside military personnel in Abu Ghraib are covered, irrespectiveof which agency administers the contract in question. However, it does not cover civilian andcontract employees of agencies engaged in their own operations overseas. Courts may be confrontedwith the question of what constitutes a DoD mission overseas, as opposed, perhaps, to a diplomaticor intelligence mission of some other agency. Whether jurisdiction is expanded retroactively mayalso become an issue in some cases. In February, 2004, the Department of Defense issued proposedregulations for implementing MEJA, but those rules never went into effect and will likely need tobe adjusted for the new scope of the law. (82)

Military Law. It is less clear whether contractpersonnel are amenable to military prosecution under the UCMJ for conduct that took place in Iraq. Article 2(a)(10), UCMJ, extends military jurisdiction, in "time of war," to "persons serving with oraccompanying an armed force in the field." As a reflection of the constitutional issues that arisewhenever civilians are tried in military tribunals, recognized by the Supreme Court in Reid v.Covert , (83) courts laterinterpreted the term "war" to mean only wars declared by Congress. (84) However, the Reid Courtdistinguished the case at issue from Madsen v. Kinsella , (85) in which a military spouse was tried by military commission inoccupied Europe, on the basis that

[that case] concerned trials in enemy territory which hadbeen conquered and held by force of arms and which was being governed at the time by our militaryforces. In such areas the Army commander can establish military or civilian commissions as an armof the occupation to try everyone in the occupied area, whether they are connected with Army ornot. (86)

If Madsen remains valid, if and for so long as the United States is considered an "occupying power"in Iraq, it may be acceptable under the Constitution to subject contractors there to militaryjurisdiction. Additionally, if offenses by contract personnel can be characterized as violations of thelaw of war, the UCMJ may extend jurisdiction to try suspects by court-martial (87) or by militarycommission. (88) However, the validity of Madsen may have been undermined for the purposes of operations in Iraqby later case law requiring a congressional declaration of war and otherwise limiting militaryjurisdiction over civilians. (89)

Iraqi Government Authority over Contractors. Contractors to U.S. agencies or any of the multinational forces or diplomatic entities in Iraq operateunder the law of the interim government in Iraq, which includes orders issued by the CPA prior tothe hand-over of sovereignty to the Iraqi Interim Government. (90) Under CPA OrderNumber 17, as revised June 27, 2004, contractors are exempt from Iraqi laws for acts related to theircontracts. (91) That orderprovides that "[c]ontractors shall not be subject to Iraqi laws or regulations in matters relating to theterms and conditions of their Contracts. . . ," but that they are subject to all relevant regulations withrespect to any other business they conduct in Iraq (section 4(2)). Contractors are also immune fromIraqi legal processes for acts performed under the contracts (section 4(3)). Iraqi legal processes couldcommence against contract personnel without the written permission of the Sending State, but thatState's certification as to whether conduct at issue in a legal proceeding was related to the terms andconditions of the relevant contract serves as conclusive evidence of that fact in Iraqi courts (section4(7)).

Redress

In addition to criminal punishment of those responsible for torture, there may also be a legalright to compensation for the victims. This section briefly summarizes international law regardingthe right to compensation in cases involving breaches of international law, followed by a discussionof available means under U.S. law.

State Responsibility

Conduct that violates international obligations is attributable to a State if it is committed bythe government of the State or any of its political subdivisions, or by any official, employee, or agentoperating within the scope of authority of any of these governments, or under color of suchauthority. (92) Principlesof State responsibility require a State in breach of an obligation to another State or internationalorganization, without justification or excuse under international law, to terminate the violation andprovide redress. (93)

The matter of reparations for war crimes is ordinarily something that is negotiated througha peace treaty at the end of the armed conflict. Reparations may take the form of monetarycompensation for the damages caused by the violation, but they may also take such forms asrestitution in kind, restoration of the status quo ante , or specific performance of an undertaking. (94) It is possible that therespective governments may reach an agreement for some type of reparation, and yet the individualvictims are not guaranteed any compensation at all. (95)

The primary remedy for a breach of State responsibility with respect to the maltreatment ofdetainees appears to be the payment of reparations. The Red Cross commentary on the GPW statesthat

[c]ompensation for damage resulting from the unlawfulact, although not stipulated explicitly, is undoubtedly implied by the authors of Article 12. Consequently, a State which bears responsibility for a violation of the Convention is in duty boundto make good the damage caused, either by restoring everything to the former condition . . . or bypaying damages, the choice resting, as a general rule, with the injured party. In many cases,however, reparation will have to be limited to the payment of damages, when the nature of theprejudice caused makes restoration impossible. An example of this would be the physical andmental injury suffered by prisoners . . . . (96)

Even though compensation may be contemplated, however, an individual who is harmed may notbe able to seek redress directly, particularly when, as under the Convention, no private right of actionexpressly is granted. Under traditional international practice, the State of an individual's nationalityis regarded as having suffered the harm when an international agreement is breached, and it is up tothat State alone to press for reparation. However, international law may be changing in that regard. For example, the Rome Statute of the International Criminal Court provides for the compensationof victims of international crimes out of a trust fund. (97) In the aftermath of Iraq's occupation of Kuwait, the U.N.Security Council set up a compensation commission to adjudicate claims submitted by victims ofwar crimes through their respective home countries.

U.S. Provisions for Compensation

As a general rule, the United States may not be sued in its own courts unless it has waivedits sovereign immunity. (98) Congress has provided a waiver for certain types of claimsthrough the Federal Tort Claims Act (FTCA), (99) but it does not include tort claims involving injuries that occurredoverseas. (100) Victimsmay also be able to sue for damages in U.S. courts, for example, under the Alien Tort Statute or theTorture Victim Protection Act. (101) Congress may provide for compensation without waiving U.S.sovereign immunity through administrative procedures, and has done so in several instances. (102)

The Military Claims Act. Persons injured by U.S.military officials may seek compensation under the Military Claims Act, 10 U.S.C. Â§ 2733. TheMCA compensates for personal injury, death, or property damage caused by military personnelor civilian employees acting within the scope of their employment or by "noncombatant activities of a peculiarly military nature." The Secretaries of the military departments prescribe regulationssetting forth the circumstances under which claims will be paid. (103) A claimant may appealto the JAG, but there is no right to sue the United States in federal court if the military departmentinvolved denies the claim.

Compensation under the MCA is generally limited to $100,000. Claims for personal injury or death may include items such as medical expenses, lost earnings, diminished earningcapacity, pain and suffering, and permanent disability. Ordinarily, the law of the locale where theinjuries occurred is applied. Enemy nationals, as well as nationals of an ally of a country at war withthe United States, are ineligible for relief under the MCA unless the individual claimant isdetermined to be friendly to the United States.

The Foreign Claims Act. Inhabitants of foreigncountries who are injured by military personnel or incidental to noncombat activities of the U.S.military may be compensated for injury, death, or property damage under the Foreign Claims Act(FCA), 10 U.S.C. Â§ 2734-2736. The Department of Defense has assigned single-serviceresponsibility for processing claims in Iraq to the Army. All FCA claims are decided by a ForeignClaims Commission, ordinarily consisting of one or three military attorneys appointed by the SeniorJudge Advocate in a foreign area of operations. (104) Like the MCA, the FCA relies on local law to determinewhether claims are compensable and what level of compensation is appropriate. Where the claimantis a national of a country at war with the United States, compensation is available only if theclaimant is determined by the commission or by the local commander to be friendly to the UnitedStates. Relief provided under the FCA is considered to be ex gratia and does not preclude a recipientfrom pursuing a court action, but the FCA does not constitute a waiver of sovereign immunity anddoes not provide a cause of action in court. The United States may pursue subrogation againstindividual U.S. tortfeasors in order to recoup funds expended.

Role of Congress

Congress has the authority under the Constitution to make rules regarding capture on landor water, (105) to defineand punish violations of international law, (106) and to make regulations to govern the armed forces. (107) However, it hasnotpreviously taken a very active rule in prescribing the treatment of prisoners of war and civilianinternees. (108) Thefollowing sections summarize the congressional reaction to the Abu Ghraib scandal and legislativeproposals to prevent a recurrence.

Oversight and Resolutions -- 108th Congress

The 108th Congress took up issues related to the Abu Ghraib scandal and the treatment ofdetainees in numerous committee hearings, and reaffirmed that torture is unlawful. Section 9011 ofthe Department of Defense Appropriations Act of 2005, P.L. 108-287 , states that

Congress, consistent with international and UnitedStates law, reaffirms that torture of prisoners of war and detainees is illegal and does not reflect thepolicies of the United States Government or the values of the people of the UnitedStates.

Also during the 108th Congress, the House of Representatives and the Senate each passedresolutions condemning the abuses at Abu Ghraib and calling for investigations. (109) Several Houseresolutions of inquiry that would have called for the Administration to turn over pictures, film anddocuments related to the abuse of Iraqi prisoners were reported adversely out of committee and neverreached a vote by the full house. (110)

Hearings. At least five committees -- the SenateArmed Services Committee, Senate Select Committee on Intelligence, House Select Committee onIntelligence, House Armed Services Committee, and Senate Foreign Relations Committee -- heldhearings during the 108th Congress where the Abu Ghraib scandal was discussed. In a series ofhearings held in May, 2004, the Armed Services Committees of both houses took testimony fromnumerous Department of Defense officials, including Secretary of Defense Donald Rumsfeld,General Richard B. Myers, Chairman, Joint Chiefs of Staff; Acting Secretary of the Army LesBrownlee; U.S. Army Chief of Staff General Peter J. Schoomaker; and CENTCOM DeputyCommander Lieutenant General Lance L. Smith. The Committees also interviewed General Taguba,who investigated the MP unit at Abu Ghraib, and Stephen Cambone, Undersecretary of Defense forIntelligence, as well as other intelligence officials. The Senate Armed Services Committee tooktestimony from CENTCOM Commander General John Abizaid, Lieutenant General RicardoSanchez, Commander of the Multinational Force-Iraq; Major General Geoffrey Miller, DeputyCommander for Detainee Operations in Iraq, and Colonel Marc Warren, Army Judge AdvocateGeneral.

In July, 2004, the Senate Armed Services Committee interviewed Lieutenant General PaulMikolashek, Army Inspector General, about the findings of his investigation into the matter. OnSeptember 9, the Senate and House Armed Services Committee held hearings to receive testimonyfrom general officers who conducted a formal investigation into the allegations of abuse, (111) and from JamesSchlesinger and Harold Brown, appointed by the Secretary of Defense to head the Independent Panelto Review DOD Detention Operations. (112)

Legislation -- 108th Congress

The following laws enacted by the 108th Congress address the treatment of prisoners in Iraq.

National Defense Authorization Act for FY2005, P.L.108-375. In addition to the jurisdictional modifications described above, Congressaddressed the detention issue in the Defense Authorization Act, which was signed into law by thePresident October 28, 2004. The Senate had included a measure in its version that would haveapplied to CIA interrogators, as well as intelligence personnel from other agencies, the same rulesthat apply to the military, (113) but the Administration objected that the provision "would haveprovided legal protections to foreign prisoners to which they are not now entitled," (114) and the measure wasstripped out in conference. (115)

The National Defense Authorization Act does not specifically prohibit torture or cruel,inhuman or degrading treatment of detainees, as the Senate bill would have provided. (116) Instead, it sets forththe sense of the Congress that "the Constitution, laws, and treaties of the United States and theapplicable guidance and regulations of the United States Government prohibit the torture or cruel,inhuman, or degrading treatment of foreign prisoners held in custody by the United States," and thatno detainee shall be subject to such treatment. (117) Section 1091 states that the policy of the United States is toensure that no detainee in its custody is subjected to the treatment described above, to promptlyinvestigate and prosecute instances of abuse, to ensure that U.S. personnel understand the applicablestandards, to accord detainees whose status is in doubt the protection for prisoners of war under theGeneva Conventions, and to "expeditiously process and, if appropriate, prosecute detainees in thecustody of the United States, including those in the custody of the United States Armed Forces atGuantanamo Bay, Cuba."

Required Regulations. Section 1092 requires themilitary to implement, within 150 days of the passage of the act, a policy to ensure detainees aretreated in accordance with the obligations set forth in section 1091. The required DOD regulationsare to contain, at a minimum, the following elements:

(1) Commanding officers of detention and interrogationfacilities must educate their troops, including military personnel and civilian contractors, about theGeneva Convention Relative to the Treatment of Prisoners ofWar.

(2) DoD contracts in which civilian contract personnelwill be required to interact with detainees must include a requirement that such personnel havereceived training regarding the international obligations and applicable U.S. law.

(3) Detainees must be informed in their own languagesof their rights under the Geneva Convention.

(4) The Department of Defense must provide forperiodic inspections, both announced and unannounced, of detention and interrogationfacilities.

(5) Guard-detainee contact must be same-sex exceptunder exigent circumstances.

The first two requirements of section 1092 codify the GPW, art. 127 requirements that StatesParties provide for education in the requirements of the Geneva Conventions, except that it is limitedto military personnel and civilian contractors working at detention and interrogation facilitiesoperated under DOD. The third requirement also corresponds to an obligation under the GPW. (118) With respect to thefourth requirement, the GPW does not specifically require inspections by the military chain ofcommand. However, subparagraph 3 would provide a means to satisfy the obligation to preventabuse. The fifth requirement also echoes an obligation under the GPW, at least as the Conventionapplies to women prisoners. (119)

Reporting Requirements. Section 1093 of PL 108-375requires DOD to submit copies of regulations, policies and orders prescribed under section 1092 tothe armed services committees of both houses within 30 days after their implementation, along witha report setting forth steps taken to implement section 1092 as of that time. (120) Section 1093 alsorequires DOD to submit an annual report giving notice of any investigation into any violation of lawsregarding the treatment of detainees, as long as ongoing criminal or administrative actions are notcompromised through such notice. Further, the report will contain aggregate data relating to thedetention operations of the Department of Defense, including how many persons are held and inwhat status, and how many have been transferred to the jurisdiction of other countries.

Section 1206 requires DOD to submit a report on contractors supporting deployed forces andreconstruction efforts in Iraq, including a description of the overall chain of command and oversightmechanisms to ensure adequate command and supervision and an explanation of their legal statusafter the transfer of sovereignty in Iraq. The report is to be submitted within 180 days of theenactment of P.L. 108-375 , and will include a description of sanctions that may be imposed in caseof misconduct, a list of actions taken against contractor personnel as of the date of the initiation ofmilitary operations in Iraq, May 1, 2003.

Prohibition on Funds to Justify Torture. Congressincluded in the Consolidated Appropriations Act for FY2005, P.L. 108-447 , a prohibition on the useof funds by the Justice Department to "be used in any way to support or justify the use of torture byany official or contract employee of the United States Government." (Sec. 632).

Issues for the 109th Congress

As investigations continue into U.S. detention operations outside the United States, calls forfurther congressional action and for more rigorous investigation will likely continue. (121)

Hearings. The Senate Judiciary Committee heldhearings June 15, 2005, on the subject of Detainees. The Senate Armed Services Committee,Subcommittee on Personnel, held hearings July 14, 2005 on Detention Policies and Military Justice. On that same day, the House Permanent Select Committee on Intelligence held a hearing entitled"Critical Need for Interrogation in the Global War on Terror." The Armed Services Committee ofthe House of Representatives held hearings June 29, 2005, entitled "Detainee Operations atGuantanamo Bay." Detainee operations were also discussed during nominations hearings, includingthe nomination of Attorney General Alberto Gonzales and the nomination of General Peter Pace forthe position of Chairman of the Joint Chiefs of Staff.

Legislation. The Emergency SupplementalAppropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 ( P.L. 109-13 ),enacted into law May 11, 2005, contains a prohibition on the use of funds appropriated by that act"to subject any person in the custody or under the physical control of the United States to torture orcruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws,or treaties of the United States." (Sec. 1031). The prohibited treatment is defined to coincide withthe statutory definition of torture and the Senate declaration that accompanied the ratification ofCAT, which defined "cruel, unusual, and inhumane treatment or punishment" as actions that areprohibited by the Fifth, Eighth or Fourteenth Amendments to the Constitution. However, withrespect to cruel, unusual and inhumane treatment, the Administration has taken the position thatneither the Constitution nor CAT, as implemented by the United States, applies to aliens heldoverseas. (122) It isthus unclear whether section 1031 will be interpreted to impose any new restrictions on Defensespending.

Two bills would create an independent commission to investigate detainee abuse( H.R. 3003 , S. 12 Â§ 224). The House of Representatives passed a provisionas part of its Defense Authorization bill for FY2006, H.R. 2863 , that would "reaffirm[]that torture of prisoners of war and detainees is illegal and does not reflect the policies of the UnitedStates Government or the values of the people of the United States." (Sec. 9009).

H.R. 112 would require detainee interrogations, whether conducted by military or civilian personnel (including contractors), to be videotaped. The resulting videotapes could beclassified, but would be available to any party in any military or civilian criminal proceeding, ifrelevant, under seal if appropriate. The bill would also require that immediate and unfettered accessto detainees be accorded to representatives of the International Committee of the Red Cross, the UNHigh Commissioner for Human Rights, and the UN Special Rapporteur on Torture.

The Senate Defense Authorization bill ( S. 1042 ) contains a section that wouldrequire the Secretary of Defense to establish a DoD policy with respect to the role of military medicaland behavioral science personnel in the interrogation of detainees. (Sec. 1071). The Senate is alsoconsidering amendments to that bill to require the Defense Department to adhere to the Army'sinterrogation manual (SA 1557), to prohibit cruel, inhumane and degrading treatment of prisonersin U.S. custody no matter where they are held (SA 1556), to authorize the Combatant Status ReviewTribunals to determine detainees' status (SA 1505), and to establish an independent commission toinvestigate detainee abuse (SA 1494). (123) After the White House reportedly threatened to veto the billif it includes measures that would impede the President's ability to conduct the war onterrorism, (124) the billwas returned to committee and further action on it was postponed.

The Senate version of the Defense Department FY2006 Appropriations bill( H.R. 2863 ) contains a provision, introduced as an amendment by Senator McCain, thatwould prohibit the "cruel, inhuman and degrading treatment" of detainees. (125) Section 8154 of thebill, as amended, would limit interrogation techniques used by the Department of Defense to thosedefined in U.S. Army Field Manual (FM) 34-52, Intelligence Interrogation (126) ("FM 34-52"). Thisrequirement would not apply with respect to persons detained under criminal or immigration laws. The provision would not restrict DoD's authority to revise the regulation, but would require that DoDprescribe uniform interrogation procedures for all detainees in DoD custody who are undergoinginterrogation for intelligence purposes.

Section 8155 of H.R. 2863 , as passed by the Senate, applies more broadly. Itwould prohibit the cruel, inhuman, or degrading treatment or punishment of all persons in U.S.custody, regardless of the agency in whose custody the person is held and without geographicallimitation. The prohibited treatment is defined as that which would violate the Fifth, Eighth, andFourteenth Amendments to the U.S. Constitution, as the Senate has interpreted "cruel, inhuman, ordegrading" treatment banned by the U.N. Convention Against Torture. (127) The Administrationhas reportedly sought to have the Central Intelligence Agency excepted from this provision on thegrounds that "the president needed maximum flexibility in dealing with the global war onterrorism." (128) Senator McCain has criticized the Administration's proposal, arguing that an express CIA exemptioncould be interpreted as tantamount to statutory authority for the CIA to subject detainees to thetreatment his amendment seeks to ban. (129)

The Targeting Terrorists More Effectively Act of 2005, S. 12 , contains aprovision to define U.S. policy with respect to detainees in the war against terrorism. Section 223would express the sense of the Congress that, at a minimum, Common Article 3 of the GenevaConventions applies to the war. The bill would expressly mandate that "no detainee shall be subjectto torture or cruel, inhumane, or degrading treatment or punishment that is prohibited by theConstitution, laws, or treaties of the United States." It would further state that the policy of theUnited States is to treat all foreign persons in the custody of the United States "humanely and inaccordance with the legal obligations under United States law and international law, including theobligations in the Convention Against Torture and in the minimum standards set forth in the GenevaConventions." The bill would further proclaim as U.S. policy that "all officials of the United Statesare bound both in wartime and in peacetime by the legal prohibitions against torture, cruel,inhumane, or degrading treatment set out in the Constitution, laws, and treaties of the United States."

It may be argued that it is unnecessary for Congress to provide more express prohibitions toenforce executive compliance with what already is the law of the land. (130) However, a series ofdocuments released by the executive branch that discuss legal aspects of the treatment of detaineesin the war on terrorism may be read to suggest that relevant treaties are inoperative with respect tothe executive branch unless Congress has enacted specific implementing legislation, or that thePresident has inherent authority to set aside treaty obligations. (131) As investigations intoalleged abuse of detainees at Guantanamo Bay Naval Station continue, the issue of detaineetreatment seems likely to continue to draw the attention of Congress.