Memorandum for William J. Haynes II, General Counsel, Department of Defense

Title: Deputy Assistant Attorney General

Title: General Counsel, Department of Defense

• The Geneva Conventions and the War Crimes Act don't apply to al-Qaida since its members are not state actors.
• They also don't apply to Taliban.

Memorandum for the President, Subject: Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict With al Qaeda and the Taliban

Title: White House Counsel

Title: President

• The president has the authority to decide that Geneva does not apply.
• The war on terror is a "new kind of war" "in my judgment this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay) athletic uniforms and scientific instruments."

Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan

Title: Secretary of State

Title: Assistant to President for National Security

• Suggests that draft memo being circulated doesn't present to president the full range of options before him, or identify pros and cons of each option.
• Pros of applying Geneva to conflict far outweigh cons and include: danger to U.S. troops; undermining support among allies; reversal of a century of U.S. policy.

The President
The White House
Washington, D.C.

Title: Attorney General

Title: President

• President should make a determination that Geneva does not apply and thus afford "the highest level of legal certainty available under American law."

Comments on Your Paper on the Geneva Convention

Title: State Department Legal Adviser

• "A decision that the conventions do not apply to the conflict in Afghanistan deprives our troops there of any claim to the protection of the conventions in the event they are captured."
• Notes that CIA lawyers asked that Bush's pledge to abide by spirit of conventions would not apply to CIA operatives.

Humane Treatment of al Qaeda and Taliban Detainees

Title: President

Title: Vice President

Title: Secretary of State

Title: Secretary of Defense

Title: Attorney General

• Geneva doesn't apply to al-Qaida.
• President has constitutional authority to suspend Geneva altogether but chooses not to.
• Geneva does apply to conflict with Taliban.
• Neither Article 3 or 4 apply to Taliban.
• Nonetheless, human values demand that detainees be treated humanely and "consistent with principles of Geneva."

Memorandum for Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A

Title: Assistant Attorney General

Title: White House counsel

• Defines torture as methods that cause "severe physical or mental pain or suffering." Defines "severe pain" as involving damage that rises "to the level of death, organ failure, or the permanent impairment of a significant body function."
• Also concludes that torture requires specific intent to cause prolonged mental harm such that defendant's good-faith belief that the acts were not torture constitute a "complete defense to such a charge."
• To be torture, "acts must penetrate to the core of an individual's ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality."

Action Memo, Counter-Resistance Techniques

Title: General counsel, Department of Defense

Title: Secretary of Defense

• Categories I and II approved; category III denied.
• Category I: Use of mild and fear-related techniques.
• Category II: Use of stress positions; use of falsified documents; isolation for up to 30 days; removal of clothing; preying on fears (i.e., dogs); interrogation outside standard interrogation room "so long as no severe physical pain inflicted and prolonged mental harm intended."
  Deprivation of light and sound, use of hoods, and use of 20-hour interrogations are all legally permissible.
• Category III: Use of death threats or threats of imminent physical harm not illegal but should be utilized with caution. Exposure to cold, water, or use of wet towel to suggest suffocation not approved.
• "Based on the Supreme Court framework utilized to assess whether a public official has violated the Eighth Amendment, so long as the force used could have plausibly been thought necessary in a particular situation in order to achieve a legitimate governmental objective and it was applied in a good faith effort and not maliciously or sadistically for the purpose of causing harm, the proposed techniques are likely to pass constitutional muster."

Action Memo, Counter-Resistance Techniques

Title: Secretary of Defense

Title: General Counsel, Department of Defense

• Notes in handwriting, "I stand for 8-10 hours a day. Why is standing limited to 4 hours?"

Memorandum for Commander USSouthcom, Subject: Counter-Resistance Techniques

Title: Secretary of Defense

• Rescinds approval for some of the above techniques at Guantanamo. But instructs head of U.S. Southern Command that, "should you determine that particular techniques in either of these categories are warranted in an individual case, you should forward that request to me." Such requests require a "thorough justification."

Memorandum for the General Counsel of the Department of Defense, Subject: Detainee Interrogation

Title: Secretary of Defense

Title: General counsel of Defense Department

• Seeks the establishment of a working group to assess all aspects of detainee interrogations.

Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operation Considerations

Title: Secretary of Defense

Key Issues: Working Group Report on interrogation techniques in war on terror.

Allegedly this document was brought by Gen. Geoffrey Miller from Guantanamo to Iraq in 2003 to govern interrogations there as well.

• The Geneva Conventions do not apply to al-Qaida; Article 4 of the Geneva Conventions does not apply to the Taliban.
  The 1994 Convention against torture defines torture as "specifically intended to inflict severe physical or mental pain or suffering" and that suffering refers to: 1) intentional infliction of pain or suffering; 2) administration or threats of mind-altering substances; 3) threat of imminent death; 4) threats to third parties. "In sum, the obligations under the Torture Convention apply to the unlawful combatant detainees, but only as defined in the U.S. understanding."
• "Customary international law cannot bind the Executive Branch because it is not federal law."
• 18 USC Section 2340 (the federal torture statute) applies only to offenses that occur outside the United States. Guantanamo Bay is considered within the U.S. for purposes of the torture statute, "thus the torture statute does not apply to the conduct of US personnel at GTMO."
• Also, to violate 2340 the actor must have specifically intended "to disobey the law."
• Even if the defendant knows that severe pain will result from his actions, "if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith."

Memorandum for the Commander, US Southern Command, Subject: Counter-Resistance Techniques in the War on Terrorism

Title: Secretary of Defense

Title: Commander, U.S. Southern Command

• Approved techniques include: direct asking; offering or removing incentives; playing on love or hate detainee feels; inducing fear; playing on ego; "Mutt and Jeff" techniques; dietary manipulation; changing room temperature to foster "moderate discomfort: sleep adjustment (but not sleep deprivation); convincing detainee interrogators are not American; isolation.
• Contains detailed safeguards and scripts to walk interrogators through the procedure.