Recommendations to the Executive Branch
1. Prohibit the “enhanced” interrogation techniques, in order to protect U.S. officials and personnel from potential criminal liability and to ensure that all U.S. personnel adhere to U.S. law.
2. Prohibit the use of any other method that, alone or in combination with other interrogation methods, will more likely than not cause significant physical and/or mental pain or suffering.
3. Instruct all U.S. interrogators in effective, legal, non-harmful methods of interrogation.
i Pub. L. No. 109-366, §6(b), 120 Stat. 2600 (2006).
ii 18 U.S.C. §2340 (2007) (prohibits the infliction of “severe physical or mental pain and suffering,” including “prolonged mental harm,” in terms virtually identical to the MCA’s provision prohibiting “torture.”)
iii National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163 § 1403, 119 Stat. 3136 (2006).
iv See, e.g., Dana Priest , CIA Puts Harsh Tactics On Hold; Memo on Methods Of Interrogation Had Wide Review, WASH. POST, June 27, 2004, available at http://www.washingtonpost.com/ac2/wp-dyn/A8534-2004Jun26?language=printer (accessed Apr. 26, 2007). According to the Washington Post article, the enhanced interrogation techniques were approved by Justice Department and National Security Council lawyers in 2002, briefed to key congressional leaders, and required the authorization of CIA Director George J. Tenet for use. See also, Brian Ross & Richard Esposito, CIA’s Harsh Interrogation Techniques Described, ABC NEWS ONLINE, Nov. 18, 2005, available at http://abcnews.go.com/WNT/Investigation/story?id=1322866 (accessed Apr. 26, 2007).
v Press Release, White House, George Bush, President of the United States, President Bush Signs Military Commissions Act of 2006, (October 17, 2006), available at http://www.whitehouse.gov/news/releases/2006/10/20061017-1.html. The methods and techniques reportedly used in the CIA program have also been referred to as “enhanced interrogation methods” by anonymous senior CIA officials. See Priest, supra note 4.
vi Review of DoD-Directed Investigations of Detainee Abuse (U)-Office of the Inspector General of the Department of Defense; Report No. 06-INTEL-10--August 25, 2006; (Declassfied May 18th, 2007).
vii Benjamin Mark, The CIA Torture Teacher, Salon. June 21, 2007.
viii Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (holding that Common Article 3 applies to alleged members of Al Qaeda and the Taliban).
ix Military Commissions Act of 2006, § 950(j)(b)..
x Id. (emphasis added)
xi Id. (emphasis added)
xii Military Commissions Act of 2006, §5(b)(2)(A). (“the term ‘severe mental pain or suffering’ shall be applied … in accordance with the meaning given that term in section 2340(2) of this title”).
