The War Crimes Act of 1996, as amended, makes it a criminal offense to commit certain violations of the law of war when such offenses are committed by or against U.S. nationals or Armed Service members. Among other things, the act prohibits certain violations of Common Article 3 of the 1949 Geneva Conventions, which sets out minimum standards for the treatment of detainees in armed conflicts “not of an international character” (e.g., civil wars, rebellions, and other conflicts between State and non-State actors). Common Article 3 prohibits protected persons from being subjected to violence, outrages upon personal dignity, torture, and cruel, humiliating, or degrading treatment. In the 2006 case of Hamdan v. Rumsfeld, the Supreme Court rejected the Bush Administration’s long-standing position that Common Article 3 was inapplicable to the present armed conflict with Al Qaeda. As a result, questions have arisen regarding the scope of the War Crimes Act as it relates to violations of Common Article 3 and the possibility that U.S. military and intelligence personnel may be prosecuted for the pre-Hamdan treatment of Al Qaeda detainees.
As amended by the Military Commissions Act of 2006 (MCA, P.L. 109-366), the War Crimes Act now criminalizes only specified Common Article 3 violations labeled as “grave breaches.” Previously, any violation of Common Article 3 constituted a criminal offense. Both the MCA and the Detainee Treatment Act of 2005 (DTA, P.L. 109-148, Title X) also afford U.S. personnel who engaged in the authorized interrogation of suspected terrorists with a statutory defense in any subsequent prosecution under the War Crimes Act or other criminal laws. These statutory protections, along with a number of other available defenses, appear to make it unlikely that U.S. personnel could be convicted under the War Crimes Act for any authorized conduct which was undertaken with the reasonable (though mistaken) belief that such conduct was legal.
In the 110th Congress, legislative proposals were introduced to modify the scope of the War Crimes Act, and it is possible that new legislative proposals will be introduced in the 111th Congress. This report discusses current issues related to the War Crimes Act and Common Article 3.
The War Crimes Act of 1996, as amended, makes it a criminal offense to commit certain violations of the law of war when such offenses are committed by or against U.S. nationals or Armed Service members. Among other things, the act prohibits certain violations of Common Article 3 of the 1949 Geneva Conventions, which sets out minimum standards for the treatment of detainees in armed conflicts "not of an international character" (e.g., civil wars, rebellions, and other conflicts between State and non-State actors). Common Article 3 prohibits protected persons from being subjected to violence, outrages upon personal dignity, torture, and cruel, humiliating, or degrading treatment. In the 2006 case of Hamdan v. Rumsfeld, the Supreme Court rejected the Bush Administration's long-standing position that Common Article 3 was inapplicable to the present armed conflict with Al Qaeda. As a result, questions have arisen regarding the scope of the War Crimes Act as it relates to violations of Common Article 3 and the possibility that U.S. military and intelligence personnel may be prosecuted for the pre-Hamdan treatment of Al Qaeda detainees.
As amended by the Military Commissions Act of 2006 (MCA, P.L. 109-366), the War Crimes Act now criminalizes only specified Common Article 3 violations labeled as "grave breaches." Previously, any violation of Common Article 3 constituted a criminal offense. Both the MCA and the Detainee Treatment Act of 2005 (DTA, P.L. 109-148, Title X) also afford U.S. personnel who engaged in the authorized interrogation of suspected terrorists with a statutory defense in any subsequent prosecution under the War Crimes Act or other criminal laws. These statutory protections, along with a number of other available defenses, appear to make it unlikely that U.S. personnel could be convicted under the War Crimes Act for any authorized conduct which was undertaken with the reasonable (though mistaken) belief that such conduct was legal.
In the 110th Congress, legislative proposals were introduced to modify the scope of the War Crimes Act, and it is possible that new legislative proposals will be introduced in the 111th Congress. This report discusses current issues related to the War Crimes Act and Common Article 3.
The 1949 Geneva Conventions proscribe certain conduct by High Contracting Parties toward specified categories of vulnerable persons during armed conflict.1 High Contracting Parties are also required to provide effective penal sanctions against any person who commits (or orders the commission of) a "grave breach" of one of the Conventions, which is defined to include the wilful killing, torture or inhuman treatment, and the causing of great suffering or serious injury to the body or health of protected persons.2 Congress approved the War Crimes Act of 1996 (P.L. 104-192) specifically to implement the Conventions' penal requirements.3
The War Crimes Act imposes criminal penalties against persons who commit certain offenses under the law of war, when those offenses are either committed by or against a U.S. national or member of the U.S. Armed Forces. The act applies regardless of whether the offense occurs inside or outside the United States. Offenders are subject to imprisonment for life or any term of years and may receive the death penalty if their offense results in death to the victim.
At the time of enactment, the War Crimes Act only covered grave breaches of the 1949 Geneva Conventions. During congressional deliberations, the Departments of State and Defense suggested the act be crafted to cover additional war crimes, but these recommendations were not immediately followed.4 However, Congress amended the War Crimes Act the following year to cover additional war crimes that had been suggested by the State and Defense Departments, including violations under Article 3 of any of the 1949 Geneva Conventions (Common Article 3). Common Article 3 is applicable to armed conflicts "not of an international character" (e.g., civil wars, rebellions, and other conflicts between State and non-State actors) and covers persons taking no active part in hostilities, including those who have laid down their arms or been incapacitated by capture or injury. Such persons are to be treated humanely and protected from certain treatment, including "violence to life and person," "cruel treatment and torture," and "outrages upon personal dignity, in particular, humiliating and degrading treatment."
There has been controversy concerning whether activities by military and intelligence personnel relating to captured Al Qaeda suspects might give rise to prosecution under the War Crimes Act, particularly in light of the Supreme Court's ruling in the 2006 case of Hamdan v. Rumsfeld.5 The following sections provide relevant background and briefly discuss possible implications that the Court's ruling may have on issues relating to the War Crimes Act.
At least since early 2002 and lasting until the Court's ruling in Hamdan, the Bush Administration had taken the position that the Geneva Conventions did not apply to members of Al Qaeda captured in the global "war on terror." Specifically, the Administration argued that the Conventions were applicable to international armed conflicts between High Contracting Parties and States that complied with Convention provisions, and therefore do not cover non-State actors such as Al Qaeda. The Administration further claimed that the conflict with Al Qaeda is international in scope, and Common Article 3 accordingly was inapplicable to the conflict because it only covers armed conflicts "not of an international nature."6
The issue in Hamdan primarily concerned military tribunals convened by presidential order to try detainees for violations of the law of war. The Court held that such tribunals did not comply with the Uniform Code of Military Justice or the law of war, including the Geneva Conventions. However, the Court's interpretation of Common Article 3 had broader implications for U.S. policy towards captured Al Qaeda suspects. The Court rejected the Administration's interpretation of Common Article 3 as not covering Al Qaeda members, concluding that the provision affords "some minimal protection, falling short of full protection under the Conventions, to [any] individuals ... who are involved in a conflict in the territory of a signatory."7 In the aftermath of the Court's ruling, the Department of Defense issued new treatment guidelines concerning military detainees (including Al Qaeda members) that required, at a minimum, application of the standards articulated by Common Article 3.8 Subsequently, fourteen high-level Al Qaeda operatives who had been held abroad by the CIA and subjected to aggressive interrogation techniques were transferred to Department of Defense (DOD) custody in Guantanamo Bay, Cuba.9
The United States has apparently never prosecuted a person under the War Crimes Act.10 Perhaps as a result, there is some question concerning the act's scope. In the aftermath of the Court's ruling in Hamdan, some suggested that the War Crimes Act be amended to specify whether certain forms of treatment or interrogation constitute a punishable offense. They argued that the scope of the War Crimes Act was ambiguous, particularly as it related to offenses concerning violations of Common Article 3. In a September 2006 address, President George W. Bush suggested that some provisions of Common Article 3 provided U.S. personnel with inadequate notice as to what interrogation methods could permissibly be used against detained Al Qaeda suspects, and requested legislation listing "specific, recognizable offenses that would be considered crimes under the War Crimes Act."11 On the other hand, some argued that amending the War Crimes Act to cover specific acts would overly restrict the act's scope, making certain unspecified conduct legally permissible even though it was as severe as conduct that was expressly prohibited.
Although some types of conduct prohibited by Common Article 3 are easily recognizable (e.g., murder, mutilation, the taking of hostages), it might not always be consensus as to whether conduct constitutes impermissible "torture," "cruel treatment," or "outrages upon personal dignity, in particular humiliating and degrading treatment." In January 2009, President Barack Obama issued an Executive Order barring U.S. officials, employees, and agents, when conducting prospective interrogations, from relying on any interpretation of the law governing interrogation (including Common Article 3) that was issued by the Bush Administration following September 11, 2001, absent further guidance from the Attorney General.12 For discussion of U.S. and international jurisprudence and agency interpretations concerning the scope of these terms, particularly as they relate to interrogation techniques, see CRS Report RL32567, Lawfulness of Interrogation Techniques under the Geneva Conventions, by [author name scrubbed]; CRS Report RL33655, Interrogation of Detainees: Overview of the McCain Amendment, by [author name scrubbed]; and CRS Report RL32438, U.N. Convention Against Torture (CAT): Overview and Application to Interrogation Techniques, by [author name scrubbed].
Prior to the Court's ruling in Hamdan, the Bush Administration did not apply Common Article 3 protections to captured Al Qaeda agents. In some cases, Al Qaeda operatives were subject to harsh treatment, especially in the context of interrogation, which did not appear to comply with Common Article 3 requirements.13 As a result, some have raised questions as to whether U.S. personnel might be criminally liable under the War Crimes Act for the pre-Hamdan treatment of some Al Qaeda detainees.
Although not immune from prosecution, U.S. personnel who could be charged with violating the War Crimes Act would have several possible defenses to criminal liability, so long as their activities were conducted with the authorization of the Administration and under the reasonable (though mistaken) belief that their actions were lawful. Section 1004(a) of the Detainee Treatment Act of 2005 (DTA, P.L. 109-148), enacted several months prior to the Hamdan decision, provides that
In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States ... and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that ... [the] agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available ... or to provide immunity from prosecution for any criminal offense by the proper authorities.14
The statutory defense provided by the DTA appears to apply only to U.S. personnel who were "engaging in specific operational practices" that had been officially authorized. The defense would not apply to unauthorized conduct. The statute also does not appear applicable to higher-level U.S. officials who may have authorized, but did not directly engage in, specific operational practices involving detention or interrogation. As discussed later, the Military Commissions Act of 2006 (MCA, P.L. 109-366) subsequently made expressly clear that this defense extends to activities that occurred prior to enactment of the DTA and following September 11, 2001.
In addition to this statutory defense, a number of other legal defenses could be raised by U.S. personnel charged with War Crimes Act offenses based on conduct that had been authorized, assuming the defendants acted with government sanction and/or had been erroneously informed by responsible authorities that their conduct was legal. Although "mistake of law" defenses are generally rejected, such defenses have been recognized by courts in certain cases where defendants have acted with government sanction or after being erroneously informed by responsible authorities that their conduct was legal. These defenses can be divided into three overlapping categories: (1) defense of entrapment by estoppel, available when a defendant is informed by a government official that certain conduct is legal, and thereafter commits what would otherwise constitute a criminal offense in reasonable reliance of this representation; (2) defense of public authority, available when a defendant reasonably relies on the authority of a government official to authorize otherwise illegal conduct, and the official has actual authority to sanction the defendant to perform such conduct; and (3) defense of apparent public authority, which is recognized by some (but not all) federal circuits, and is similar to the defense of public authority, except that the official only needs to have apparent authority to sanction the defendant's conduct. 15 Similar defenses may exist for military personnel in courts-martial proceedings.16 Additionally, prosecution of U.S. personnel may be precluded by the federal statute of limitations, which limits the period for prosecution under the War Crimes Act and most other federal offenses to five years from the date the offense occurs, except in the case of a capital offense (in which case there is no temporal bar to the prosecution of the offender).17
In response to the Court's ruling in Hamdan, Congress passed the Military Commissions Act of 2006 (P.L. 109-366), which was enacted into law on October 17, 2006. Among other things, the MCA made several amendments to the War Crimes Act, so as to retroactively limit its scope.18
The MCA amended the War Crimes Act provisions concerning Common Article 3 so that only specified violations would be punishable (as opposed to any Common Article 3 violation, as was previously the case), including committing, or attempting or conspiring to commit
Prior to the enactment of the MCA, there was some debate concerning the scope of cruel treatment that should be subject to criminal penalty under the War Crimes Act.19 The MCA defined "cruel treatment" prohibited by the War Crimes Act in a similar manner to the definition of "torture" contained in the Federal Torture Statute. However, whereas a person is criminally liable for torture only if he specifically intends to cause severe mental or physical pain and suffering, pursuant to the amendments made the MCA, a person is criminally liable for inflictions of cruel treatment if he generally intended20 to cause serious mental or physical pain and suffering to a person protected under Common Article 3.
The MCA further defined "serious mental pain and suffering" and "serious physical pain and suffering" rising to the level of cruel treatment punishable under the War Crimes Act. "Serious mental pain and suffering" is defined by reference to the Federal Torture Statute's definition of "severe mental pain and suffering" rising to the level of torture. Serious mental pain and suffering constituting cruel treatment refers to pain and suffering arising from
The type of mental pain and suffering constituting cruel treatment generally differs from the type rising to the level of torture, in that it only needs to be of a serious and non-transitory nature which need not be prolonged, as opposed to being of a severe and prolonged nature. However, the War Crimes Act, as amended, provides that with respect to conduct occurring before enactment of the MCA, such pain and suffering must be of a prolonged nature.
As amended by the MCA, the War Crimes Act defines "serious physical pain or suffering" constituting cruel treatment as actual bodily injury involving
Under U.S. jurisprudence, most or all of these activities are likely considered to be of such severity as to constitute torture,21 at least in certain contexts, and could give rise to criminal prosecution if the offender specifically intended to cause such injury. However, such persons may now also be prosecuted under the War Crimes Act for such conduct (presuming it was directed against persons protected under Common Article 3), when they caused such injury through reckless or criminally negligent action.22
The amendments made by the MCA to the War Crimes Act applied retroactively, possibly precluding prosecution of personnel for some (but not all) conduct falling under the more general scope of the earlier version of the War Crimes Act.23 The MCA also provided that the statutory defense contained in DTA § 1004 covers any criminal prosecution under the War Crimes Act against U.S. personnel relating to the sanctioned treatment of detainees, if such conduct occurred between September 11, 2001, and December 30, 2005 (i.e., the date the DTA was enacted).24 It also amended the DTA to require the federal government to provide or employ counsel and pay fees related to any prosecution or civil action against U.S. personnel for authorized detention or interrogation activities.25 The MCA also specified that certain provisions of the War Crimes Act, as amended, are inapplicable with respect to collateral damage or a lawful attack.26 In addition, the provision of the War Crimes Act, as amended, relating to hostage taking does not apply to prisoner exchange during wartime. The MCA also prohibited U.S. courts from using foreign or international sources to serve as the basis for interpreting the provisions of the War Crimes Act, as amended, defining "grave breaches" of Common Article 3.27
Additionally, the MCA prevents persons from invoking the Geneva Conventions as a source of rights in certain judicial proceedings. The Conventions are prohibited from being invoked in habeas corpus or civil proceedings to which the United States or a current or former agent of the United States is a party.28
The MCA authorizes the President, acting pursuant to an Executive Order published in the Federal Register, to promulgate higher standards and administrative regulations for Geneva Conventions violations,29 so long as these rules do not authorize conduct subject to criminal penalty under the War Crimes Act.
On July 20, 2007, President Bush signed an Executive Order interpreting Common Article 3, as applied to the detention and interrogation of certain alien detainees by the CIA, when those aliens (1) are determined to be members or supporters of Al Qaeda, the Taliban, or associated organizations; and (2) likely possess information that could assist in detecting or deterring a terrorist attack against the United States and its allies, or could provide help in locating senior leadership within Al Qaeda or the Taliban.30 The Executive Order does not specifically authorize the use of any particular interrogation techniques with respect to detainees, but instead bars any CIA detention and interrogation program from employing certain practices. Specifically, the Order prohibits the use of
Although some types of conduct that were barred by the Order are easily recognizable (e.g., murder, rape, the performance of sexual acts), it is not readily apparent as to what interrogation techniques fell under the Order's prohibition against acts deemed to be "cruel, inhuman, or degrading" or "beyond the bounds of human decency." Certain interrogation techniques that have been the subject of controversy and are expressly prohibited from being used by the military under the most recent version of the Army Field Manual—waterboarding, hooding, sleep deprivation, or forced standing for prolonged periods, for example—were not specifically addressed by the Order. In a public address on September 7, 2007, CIA Director Michael Hayden stated that "no one ever claimed that the Army Field Manual exhausted all the lawful tools that America could have to protect itself," and suggested that additional interrogation techniques could be employed by the CIA that were barred from use by DOD personnel under the Army Field Manual.31
On January 22, 2009, President Barack Obama issued a new Executive Order rescinding President Bush's order of July 20, 2007, and instituting new requirements for interrogation by the CIA and other agencies.32 The new Order generally bars anyone in U.S. custody or control while in an armed conflict from being subjected to any interrogation technique or treatment other than that authorized under the Army Field Manual. The Field Manual specifically authorizes 19 interrogation techniques, some of which require higher-level authorization to be performed – i.e., "Mutt and Jeff," a "good cop, bad cop" interrogation tactic where a detainee is made to identify with the friendlier interrogator; "false flag," where a detainee is made to believe he is being held by another country known to subject prisoners to harsh interrogation; and separation, an interrogation tactic by which detainees are separated so that they cannot coordinate their stories, which is barred from use against "lawful" prisoners of war.33 The Order does not preclude federal law enforcement agencies from continuing to "use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises."34
The Executive Order also provides that when conducting prospective interrogations, U.S. government officials, employees, and agents may not rely on any interpretation of the law governing interrogations (including applicable criminal laws and Common Article 3) issued by the Department of Justice between September 11, 2001 and January 20, 2009 (i.e., the final day of the Bush Administration), absent further guidance from the Attorney General. It further establishes a Special Interagency Task Force on Interrogation and Transfer Policies,35 chaired by the Attorney General, which is required:
to study and evaluate whether the interrogation practices and techniques in [the] Army Field Manual ... when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies.... 36
The Task Force is required to issue a report to the President of its recommendations within 180 days of the Order's issuance, unless the Attorney General determines that an extension is necessary.
In the 110th Congress, legislative proposals were introduced to modify the scope of the War Crimes Act.37 The proposals would have amended the War Crimes Act to criminalize treatment of protected persons which violated the DTA's prohibition on "cruel, inhuman, and degrading treatment" of persons in U.S. custody, or which denied such persons the right to be tried for war crimes before a regularly constituted court. The proposals would also have amended the War Crimes Act to make it an offense for any person not subject to the Uniform Code of Military Justice (UCMJ) to commit any offense of Common Article 3, if such an offense is listed under the UCMJ as punishable by death or at least one year's confinement. The bills would also have amended the MCA by requiring the President to notify Geneva Convention parties that the United States expects U.S. persons detained in a conflict not of an international character to be treated in a manner consistent with U.S. interpretation and application of Common Article 3. It is possible the additional proposals to modify the War Crimes Act will be introduced in the 111th Congress.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 6 U.S.T. 3114; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 6 U.S.T. 3217; Geneva Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3316 [hereinafter "Third Geneva Convention"]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T. 3516. All four Conventions entered into force for the United States on February 2, 1956.
E.g., Third Geneva Convention, supra footnote 1, at Articles 129-130.
When the Conventions were ratified in 1955, the Senate Foreign Relations Committee believed that the obligations imposed by the Conventions' "grave breach" provisions were met by existing federal law and no further legislation was required. H.Rept. 104-698, at 3-4 (1996) (quoting Sen. Exec. Rep. No. 9, at 27 (1955)). However, in 1996 the House Committee on the Judiciary found that in some cases the United States was legally unable to prosecute persons for the commission of grave breaches of the Conventions, including when members of the armed forces were found to have committed war crimes only after their military discharge. Id. at 5.
Id. at 12-16.
Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).
See White House Memorandum, Humane Treatment of Taliban and Al Qaeda Detainees (February 7, 2002), available at http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf.
Hamdan, 126 S.Ct. at 2796 (internal quotations omitted). In interpreting Common Article 3 as ensuring de minimis protections of Al Qaeda members captured by the United States in Afghanistan, the Court noted that the official commentaries accompanying Common Article 3 made clear that "the scope of the Article must be as wide as possible." Id. (quoting Commentary: Geneva Convention Relative to the Treatment of Prisoners of War 36 (1960)). In dissent, Justice Thomas (joined by Justice Scalia) disputed this reading, arguing that the relevant commentary indicated that the purpose of Common Article 3 was principally to furnish protections to persons involved in a civil war, rather than entities of international scope such as Al Qaeda. Id. at 2846 (Thomas, J., dissenting). However, the Court appeared to leave unresolved whether the Geneva Conventions apply with respect to Al Qaeda suspects captured in places where no armed conflict is occurring. The Supreme Court may address these issues when it considers the case of al-Marri v. Pucciarelli later in 2009. See al-Marri v. Pucciarelli,534 F.3d 213 (4th Cir. 2008), cert. granted by 129 S.Ct. 680 (2008). For background on the Hamdan decision, see CRS Report RS22466, Hamdan v. Rumsfeld: Military Commissions in the "Global War on Terrorism," by [author name scrubbed].
Dept. of Defense Detainee Directive, Definitions, Treatment Policy, and Compliance with Laws of War, September 5, 2006, available at http://news.findlaw.com/hdocs/docs/dod/detainee90506directive.html.
President George W. Bush, Presidential Address, Creation of Military Commissions to Try Suspected Terrorists, September 6, 2006 [hereinafter "Presidential Address"].
White House Press Release, Myth/Fact: The Administration's Legislation to Create Military Commissions, September 6, 2006.
Presidential Address, supra footnote 9.
Executive Order, "Ensuring Lawful Interrogations," January 22, 2009 [hereinafter "2009 Executive Order"].
See, e.g., U.S. Congress, Senate Select Committee on Intelligence, Current and Projected National Security Threats, (testimony by CIA Director Michael Hayden discussing the use of waterboarding upon three detainees currently held at Guantanamo), 110th Cong., February 5, 2008; Bob Woodward, "Detainee Tortured, Says U.S. Official," Washington Post, January 14, 2009, at p. A1 (quoting Susan J. Crawford, convening authority of military commissions, stating that case of a Guantanamo detainee was not referred for prosecution because "[h]is treatment met the legal definition of torture").
Prior to the enactment of the Military Commissions Act of 2006 (P.L. 109-366), it was arguably unclear whether a reviewing court would have interpreted this defense to apply retroactively to conduct occurring before the DTA's enactment in December 2005. The Military Commissions Act specified that this defense was available to U.S. persons charged with an offense under the War Crimes Act on account of conduct committed between September 11, 2001 and the enactment of the DTA. P.L. 109-366, § 8(b) (2006).
United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n. 18 (11th Cir. 1994). Unlike the other defenses, the defense of entrapment by estoppel stems from the due process notions of fairness, rather than from common law concerning contract, equity, or agency. United States v. Austin, 915 F.2d 363, 366 (8th Cir. 1990).
While ignorance or mistake of law, including general orders or regulations, is not generally available as a defense, "mistake of law may be a defense when the mistake results from reliance on the decision or pronouncement of an authorized public official or agency." Manual for Courts Martial, Rules for Courts-Martial rule 916(l) (discussion). In the case of war crimes, a defense based on superior orders is available only with respect to direct and specific orders to commit an act constituting a war crime, and the defendant must demonstrate both the existence of the order and his sincere and reasonable belief that the order was lawful. See David A. Schleuter, Military Criminal Justice § 2-4(F) (5th ed. 1999)(citing United States v. Huet-Vaughn, 43 M.J. 105 (1995)).
18 U.S.C. § 3282.
A number of bills were introduced in the 109th Congress in response to the Hamdan decision, particularly as the decision related to the establishment of military tribunals to try detainees for violations of the laws of war. Some of these bills contained provisions amending the War Crimes Act to more fully protect U.S. personnel from criminal liability. On September 6, 2006, the Bush Administration submitted draft legislation to Congress authorizing military commissions to try detainees, amending the War Crimes Act, and specifying conduct complying with Common Article 3. White House Press Release, Fact Sheet: The Administration's Legislation to Create Military Commissions (September 6, 2006), available at http://www.whitehouse.gov/news/releases/2006/09/20060906-6.html; Draft Legislation, Military Commissions Act of 2006, available at http://www.law.georgetown.edu/faculty/nkk/documents/MilitaryCommissions.pdf. In response, several legislative proposals were thereafter introduced concerning these matters, including S. 3901, the Military Commissions Act of 2006, introduced by Senator John Warner; S. 3861, the Bringing Terrorists to Justice Act of 2006 and S. 3886, the Terrorist Tracking, Identification, and Prosecution Act of 2006, both introduced by Senator Bill Frist; and H.R. 6054, the Military Commissions Act of 2006, introduced by Representative Duncan Hunter. S. 3861, S. 3886, and H.R. 6054 were largely identical to the draft legislation proposed by the Bush Administration, while S. 3901 somewhat differed. Soon thereafter, three other bills were introduced: S. 3929 and S. 3930, which were both entitled the Military Commissions Act of 2006 and were introduced by Senator Mitch McConnell; and H.R. 6166, also entitled the Military Commissions Act of 2006, which was introduced by Representative Duncan Hunter. Reportedly, S. 3929/S. 3930 and H.R. 6166 reflected an agreement reached by the Bush Administration and certain lawmakers to resolve differences in the approach taken by S. 3901 and that taken by S. 3861, S. 3886, and H.R. 6054. Kate Zernike & Sheryl Gay Stolberg, Differences Settled in Deal Over Detainee Treatment, NY Times, September 23, 2006, at A9. H.R. 6166 was passed by the House on September 27, 2006; S. 3930 was passed by the Senate on September 28, 2006 and by the House on September 29, 2006. Although the provisions of S. 3929 /S. 3930 and H.R. 6166 were largely similar, there were initially some differences between the bills. However, the version of S. 3930 that was passed by the Senate (S.Amdt. 5085) and House was amended so that it contained the same provisions as House-passed H.R. 6166.
Several of the bills considered by the 109th Congress would have amended the War Crimes Act to criminalize only some types of cruel treatment. For example, S. 3861, S. 3886, and H.R. 6054 would only have criminalized cruel treatment rising to the level of torture, while S. 3901 would have more broadly criminalized cruel treatment that violated the standards of the Detainee Treatment Act (i.e., cruel, inhuman, or degrading treatment of the kind prohibited under the Fifth, Eighth, and Fourteenth Amendments). The scope of conduct criminalized by the MCA appears to fall somewhere between these two standards.
Specific intent is "the intent to accomplish the precise criminal act that one is later charged with." General intent usually "takes the form of recklessness (involving actual awareness of a risk and the culpable taking of that risk) or negligence (involving blameworthy inadvertence)." Black's Law Dictionary 813-814 (7th ed. 1999).
E.g., Al-Saher v. I.N.S., 268 F.3d 1143 (9th Cir. 2001) (finding that regular, severe beatings and cigarette burns inflicted upon an Iraqi alien by Iraqi prison guards constituted "torture," qualifying the alien for relief from removal under immigration regulations implementing U.N. Convention against Torture requirements); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002) (finding that Bosnian-Serb soldier had committed "torture" against non-Serbian plaintiffs who brought suit under the Torture Victims Protection Act, 28 U.S.C. § 1350 note, as he had subjected them to acts of brutality including tooth-pulling and severe beatings resulting in broken bones and disfigurement). In a 2002 memorandum interpreting the Federal Torture Statute, the Department of Justice suggested that physical pain amounting to torture must be "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Memorandum from the Office of Legal Counsel, Department of Justice, to Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (August 1, 2002), available at http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf, at 1. This memorandum was superseded by another DOJ memo in 2004. The 2004 DOJ memorandum rejected the earlier memo's findings to the extent that it treated severe physical suffering as identical to severe physical pain, and concluded that "severe physical suffering" may constitute torture under the federal torture statute even if such suffering does not involve "severe physical pain." Memorandum from the Office of Legal Counsel, Department of Justice, to James B. Comey, Deputy Attorney General, Re: Legal Standards Applicable Under 18 U.S.C. §§ 2340-2340A (December 30, 2004), available at http://www.usdoj.gov/olc/18usc23402340a2.htm, at 10.
See supra, footnote 20.
P.L. 109-366, § 6(b).
Id., § 8(b).
Id., § 8(a).
Id., § 6(b).
Id., § 6(a)(2).
Id., § 5(a). The Military Commission Act also revoked U.S. courts' jurisdiction to hear habeas corpus petitions by aliens in U.S. custody as enemy combatants. Id., § 7. In Boumediene v. Bush, the Supreme Court held that the constitutional writ of habeas extends to non-citizens held by the U.S. at Guantanamo, and enables such persons to petition federal courts for review of the legality of their detention. 128 S.Ct. 2229 (2008). The full implications of the Boumediene decision, including its implications upon legal challenges relating to the treatment of detainees, is a matter of ongoing litigation. For background, see generally CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by [author name scrubbed], [author name scrubbed], and [author name scrubbed].
P.L. 109-366, § 6(a)(3).
The Executive Order may be viewed at http://www.fas.org/irp/offdocs/eo/eo-13440.htm.
Transcript of Remarks by Central Intelligence Agency Director Gen. Michael V. Hayden at the Council on Foreign Relations, September 7, 2007, available at https://www.cia.gov/news-information/speeches-testimony/general-haydens-remarks-at-the-council-on-foreign-relations.html (rush transcript).
Executive Order, "Ensuring Lawful Interrogations," January 22, 2009 [hereinafter "2009 Executive Order"].
Department of the Army Field Manual 2-22.3 (FM 34-52), Human Intelligence Collector Operations (2006), Chapter 8 and Appendix M.
2009 Executive Order, supra footnote 32, at § 4.
Id. Besides the Attorney General, the Task Force is comprised of the Director of National Intelligence and the Secretary of Defense (who serve as co-vice-chairs); the Secretary of State; the Secretary of Homeland Security; the Director of the CIA; the Chairman of the Joint Chiefs of Staff; and other officers or full-time or permanent part-time employees of the United States, as determined by the Attorney General, with the concurrence of the head of the department or agency concerned.
Id., § 5.