The Honorable Alberto R. Gonzales
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Dear Attorney General Gonzales:
I write in reference to your sworn testimony last week to the Senate Judiciary Committee regarding the President's Executive Order interpreting Common Article 3 of the Geneva Conventions as applied to CIA detention and interrogation. Your testimony raises serious questions regarding whether that Executive Order complies with the law and would prohibit illegal and abusive interrogation techniques.
In particular, I want to give you an opportunity to clarify your troubling suggestion that it would be legal for enemy forces to subject American citizens to cruel and inhumane interrogation techniques, including waterboarding and mock execution.
During the July 24th hearing, I identified five interrogation techniques: 1) painful stress positions, 2) threatening detainees with dogs, 3) forced nudity, 4) waterboarding (i.e., simulated drowning) and 5) mock execution. I explained that the Judge Advocates General, the highest-ranking attorneys in each of the four military services, have stated that each of these techniques is illegal and violates Common Article 3 of the Geneva Conventions. I then asked you, "Would it be legal for a foreign government to subject a United States citizen to these so-called enhanced interrogation techniques which I just read?" You responded, "Senator, you're asking me to answer a question which, I think, may provide insight into activities that the CIA may be involved with in the future. … [I]t would depend on circumstances, quite frankly" (emphasis added).
It is deeply troubling that you refuse to state unequivocally that it would be illegal for enemy forces to subject American citizens to these inhumane techniques. Your failure to make this clear may embolden our enemies to abuse American prisoners. I want to give you an opportunity to clarify your views on this vitally important question.
1. For each of the five techniques named above, please respond to the following questions:
a. Would it be legal for enemy forces to use this technique on an American detainee?
b. Would it violate Common Article 3 of the Geneva Conventions for enemy forces to use this technique on an American detainee?
2. Do you agree that all interrogation techniques used by the CIA must comply with Common Article 3?
3. If all CIA interrogation techniques must comply with Common Article 3, could enemy forces legally use all such techniques against American detainees?
4. If the United States does not explicitly and publicly prohibit the five techniques named above, how can we plausibly argue that it would be illegal for enemy forces to subject Americans to such treatment?
During the July 24th hearing, you also suggested that Common Article 3 would not apply to some detainees held by the United States, which ironically would entitle al Qaeda detainees to a higher standard of treatment than other detainees. This is the first time an Administration official has publicly claimed that such a legal loophole exists. I asked you, "Do you now agree that Common Article 3 applies to all detainees held by the United States?" You responded:
What I can say is that certainly Common Article 3 applies to all detainees held by the United States in our conflict with al Qaeda. … If there were a different kind of conflict that on its face isn't covered by Common Article 3, then obviously we would not be legally bound by Common Article 3.
This is a misinterpretation of Common Article 3 and the Supreme Court's Hamdan v. Rumsfeld decision. As you acknowledged in your testimony before the Senate Armed Services Committee on August 2, 2006, Common Article 3 is "the baseline standard that now applies to the conduct of U.S. personnel in the War on Terror." The law is clear: Common Article 3 protects all detainees, regardless of their status. The Hamdan court cited the official commentary on the Geneva Conventions, which states simply, "nobody in enemy hands can be outside the law."
5. What is the legal basis for your view that Common Article 3 does not apply to all detainees held by the United States?
6. What legal protections apply to detainees who are not covered by Common Article 3?
7. Does the Executive Order regarding Common Article 3 apply to all detainees in CIA custody?
8. Are any detainees currently in U.S. custody not protected by Common Article 3?
9. Does Common Article 3 apply to all detainees held in connection with the conflict in Afghanistan?
10. Does Common Article 3 apply to all detainees held in connection with the war in Iraq?
I am also concerned that the Executive Order might permit abusive treatment that violates Common Article 3, even for those detainees who are covered by its terms. The Military Commissions Act reaffirmed the President's authority to interpret the meaning and application of the Geneva Conventions, just as he may interpret any treaty. The MCA did not grant the President the authority to redefine or narrow the Geneva Conventions. In fact, during consideration of the MCA, Congress specifically rejected the Administration's request to redefine Common Article 3.
Nonetheless, the Executive Order redefines the meaning of Common Article 3 in a manner that would permit abusive interrogation techniques. As P.X. Kelley and Robert Turner wrote in a recent Washington Post column, "the language in the executive order cannot even arguably be reconciled with America's clear duty under Common Article 3 to treat all detainees humanely and to avoid any acts of violence against their person."
Common Article 3 states that "outrages upon personal dignity, in particular humiliating and degrading treatment" are absolutely prohibited (emphasis added). The Executive Order, on the other hand, prohibits "willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency" (emphasis added). In other words, humiliating and degrading treatment, which Common Article 3 absolutely prohibits, is permitted under the Executive Order as long as it is not "willful and outrageous" or a reasonable person would not consider it "beyond the bounds of human decency." Moreover, the Executive Order permits the CIA to subject a detainee to willful and outrageous acts of personal abuse as long as they are done for some purpose other than humiliating or degrading the detainee, e.g., protecting national security.
11. What is the legal basis for the Executive Order's narrowing definition of Common Article 3?
12. Please explain how the Executive Order complies with our nation's legal obligations under Common Article 3?
13. The Justice Department reportedly issued an opinion approving the legality of interrogation techniques authorized pursuant to the Executive Order. Will you provide a copy of this opinion to the Senate Judiciary Committee and the Senate Select Committee on Intelligence? If not, please explain the specific legal basis for your refusal to provide the opinion.
Due to the gravity of this matter, I request that you respond to this letter as soon as possible, and in no case later than Thursday, August 9.
Sincerely,
Richard J. Durbin
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