1 Geneva Convention [III] Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Arts. 13, 17, 6 UST 3316, 3328, 75 UNTS 135, 150. The Convention entered into force in October 1950. Similarly, the Fourth Geneva Convention provides that civilians detained by an occupying power

Geneva Convention [IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 27, 6 UST 3516, 3536, 75 UNTS 287, 306; see also id.. Art. 31, 6 UST at 3538, 75 UNTS at 308 (“No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.”). Further, torture and inhumane treatment of prisoners of war or protected civilians are considered war crimes under the 1949 Geneva Conventions.

2 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, pmbl., Art. 1, 1465 UNTS 85, 23 ILM 1027.

3 18 U.S.C. §2340A (2000). Further, it is a criminal offense for U.S. nationals to commit war crimes. 18 U.S.C. §2441 (2000).

4 U.S. Dep’t of Army, Intelligence Interrogation, ch. 1 (Field Manual 34–52, May 8, 1987).

5 See Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations (Apr. 4, 2003), at <http://www.washingtonpost.com/wp-srv/nation/documents/040403.pdf> [hereinafter Report].

This report refers to a fifty-page memorandum by the Department of Justice’s Office of the Legal Counsel of August 2002, advising the White House that—in the context of interrogations conducted outside the United States against enemy combatants—the Convention Against Torture prohibits only the most extreme acts; that physical pain amounting to “torture” under 18 U.S.C. §2340A “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”; that the statute “may be unconstitutional if applied to interrogations” conducted by the United States in the course of the “war against al Qaeda and its allies”; and that “necessity or self-defense mayjustify interrogation methods that might” violate the statute. U.S. Dep’t ofjustice Office of the Legal Counsel, Memorandum for Alberto R. Gonzales, Counsel to the President, at 1–2 (Aug. 1, 2002), at <http://news.findlaw.com/wp/docs/doj/bybee80102.pdf>; see Priest, Dana & Jeffrey Smith, R., Memo Offered Justification for Use of Torture, Wash. Post June 8, 2004, at A1 Google Scholar; see also Allen, Mike & Priest, Dana, Memo on Torture Draws Focus to Bush, Wash. Post, June 9, 2004, at A3 Google Scholar; Schmidt, Susan, Ashcroft Refuses to Release ‘02 Memo, Wash. Post, June 9, 2004, at A1 Google Scholar.

In June 2004, officials at the White House and the Justice Department distanced themselves from this and other memoranda of the Office of Legal Counsel, stating that they would be reviewed and may be rewritten. Press Briefing by White House Counsel Judge Alberto Gonzales, DOD General Counsel William Haynes, DOD Deputy General Counsel Daniel Dell’Orto, and Army Deputy Chief of Staff for Intelligence General Keith Alexander (June 22, 2004), at <http://www.whitehouse.gov/news/releases/2004/06/20040622–14.html> (statement by White House counsel that” [u] nnecessary, over-broad discussions in some of these memos that address abstract legal theories, or discussions subject to misinterpretation, but not relied upon by decision-makers are under review, and may be replaced, if appropriate, with more concrete guidance addressing only those issues necessary for the legal analysis of actual practices”); see also Allen, Mike & Schmidt, Susan, Memo on Interrogation Tactics Is Disavowed, Wash. Post, June 23, 2004, at A1 Google Scholar.

6 Report, supra note 5, at 5. The administration had previously determined that the persons detained at Guantanamo Bay were not entitled to the protections accorded under the Third Geneva Convention. See Murphy, Sean D., Contemporary Practice of the United States, 96 AJIL 475 (2002)Google ScholarPubMed.

7 Report, supra note 5, at 6.

8 Id. at 7–8. This position may be contrasted with the administration’s position that federal habeas corpus relief in U.S. courts was not available to the detainees because the naval station was outside U.S. territory. See Murphy, Sean D., Contemporary Practice of the United States, 98 AJIL 188 (2004)Google ScholarPubMed.

9 Report, supra note 5, at 20–21.

10 Id. at 8–9.

11 Id. at 33.

12 Secretary of Defense Rumsfeld, Donald H., Memorandum for the Commander, US Southern Command, on Counter-Resistance Techniques in the War on Terrorism, Tab A, at 1–2 (Apr. 16, 2003), at <http://www.washingtonpost.com/wp-srv/nation/documents/041603rumsfeld.pdf>>Google Scholar; see also Priest, Dana & Graham, Bradley, Guantanamo List Details Approved Interrogation Methods, Wash. Post, June 10, 2004, at A13 Google Scholar; Lewis, Neil A. & Schmitt, Eric, Lawyers Decided Bans on Torture Didn’t Bind Bush, N.Y. Times, June 8, 2004, at A1 Google Scholar; Priest & Smith, supra note 5.

13 E.g., Bowden, Mark, Lessons of Abu Ghraib, Atlantic Monthly, July/Aug. 2004, at 37, 40 Google Scholar (“There are reports that Administration lawyers quietly drafted a series of secret legal opinions last year that codified the ‘aggressive’ methods of interrogation permitted at U.S. detention facilities—which, if true, effectively authorized in advance the use of coercion.”)

14 E.g., U.S. Dep’t of Defense News Transcript, Secretary Rumsfeld Media Availability Enroute to Baghdad (May 13, 2004), at <http://www.defenselink.mil>>Google Scholar (containing transcript of remarks by Secretary Rumsfeld, including that “the United States government announced with respect to Iraq that the Geneva Conventions apply. [Conventions] III and IV apply for the Iraqi prisoners of war and apply to the civilian non-military detainees. That has been the case from the beginning.”).

15 Jeffrey Smith, R., Memo Gave Intelligence Bigger Role: Increased Pressure Sought on Prisoners, Wash. Post, May 21, 2004, at A17 Google Scholar (quoting memo of Oct. 12, 2003).

16 Jehl, Douglas & Lewis, Neil A., U.S. Military Disputed Protected Status of Prisoners Held in Iraq, N.Y. Times, May 23, 2004, §1, at 12 Google Scholar (quoting Brigadier General Karpinski).

17 ICRC Press Release, Iraq: ICRC Explains Position over Detention Report and Treatment of Prisoners (May 8, 2004), at <http://www.icrc.org>.

18 The ICRC report was not made public but was leaked to the Wall Street Journal, which posted the report on its Internet site. Cloud, David S. et al., Red Cross Found Widespread Abuse of Iraqi Prisoners, Wall. St. J., May 7, 2004, at A1 Google Scholar.

19 Article 15–6 Investigation of the 800th Military Police Brigade (n.d.) [hereinafter Taguba Report]. The report was not meant for public release, but—even though portions of it were classified—it was leaked and became widely available by May 2004 on the Internet. See, e.g., <http://news.findlaw.com/hdocs/docs/iraq/tagubarpt.html>. In addition, English translations of statements by several of the abused detainees were also leaked to the public. See, e.g., Translation of Sworn Statement Provided by ________________, Detainee # __________ (Jan. 21, 2004), at <http://www.washington.post.com/wp-srv/world/iraq/abughraib/swornstatements042104.html> (the name of the detainee was withheld for privacy reasons) (describing, among other things, an act of sodomy by military police using a nightstick).

20 Taguba Report, supra note 19, pt. 1 (findings of fact), para. 5.

21 Id., para. 6.

22 Id., Conclusion, para. 1.

23 Id, pt. 1 (findings of fact), para. 10.

24 Id., para. 12.

25 Id., pt. 1 (recommendations), paras. 2, 4; pt. 3 (recommendations).

26 U.S. Dep’t of Defense Press Release, Rumsfeld Pledges to Take All Actions Needed at Abu Ghraib (May 4, 2004), at <http://www.defenselink.mil>>Google Scholar; Higham, Scott et al., Dates on Prison Photos Show Two Phases of Abuse, Wash. Post, June 1, 2004, at A1 Google Scholar.

27 White, Josh, Army Suspends General in Charge of Abu Ghraib, Wash. Post, May 25, 2004, at. A11 Google Scholar.

28 Graham, Bradley, Army Investigates Wider Iraq Offenses, Wash. Post, June 1, 2004, at A1 Google Scholar.

29 Chan, Sewell & Amon, Michael, Prisoner Abuse Probe Widened, Wash. Post, May 2, 2004, at A1 Google Scholar; Hersh, Seymour M., Torture at Abu Ghraib, New Yorker, May 10, 2004, at 42 Google Scholar. For a three-part series on the Abu Ghraib abuse, see Higham, Scott et al., A Prison on the Brink, Wash. Post, May 9, 2004, at A1 Google Scholar; Wilson, Scott & Chan, Sewall, As Insurgency Grew, So Did Prison Abuse, Wash. Post, May 10, 2004, at A1 Google Scholar; Priest, Dana & Stephens, Joe, Secret World of U.S. Interrogation, Wash. Post, May 11, 2004, at A1 Google Scholar.

30 The President’s News Conference with King Abdullah II of Jordan, 46 Weekly Comp. Pres. Doc. 800, 801 (May 6, 2004)Google Scholar.

31 UN Press Release, Secretary-General’s Press Encounter upon Arrival at UNHQ (May 13, 2004), at <http://www.un.org>>Google Scholar (unofficial transcript).