TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

Department of Defense Interrogation PoliciesThe Army Field Manual governs interrogations conducted by or at the behestof military personnel.Current Government-Wide Legal ProvisionsAs the legal terrain of interrogation is a complex one, there is extensive andongoing debate about which laws apply to interrogations conducted by agentsof the US government. In any given context, the actions of US interrogatorsmay be constrained by international treaties such as the Geneva Conventionsand the Universal Declaration of Human Rights; US statutes such as the WarCrimes Act and the Detainee Treatment Act; judicial doctrine interpretinginternational and domestic law, such as the Supreme Court’s decision in Hamdanv. Rumsfeld; Executive Orders issued by the President of the United States,which bind all actors in the executive branch, and internal regulations promulgatedby the federal agency employing the interrogating agent. 190Executive Order 13491, issued by President Obama on 22 January 2009, 191goes some distance toward clarifying the murky legal boundaries of interrogationbecause it applies uniform standards to all executive branch departmentsand agencies. Executive Order 13491 dictates that all government agenciesconducting interrogations of persons detained in armed conflict must adhereto the guidelines set forth in the Army Field Manual, and that such interrogationsshall be “consistent with” the requirements of the federal torture statute(18 USC §§ 2340–2340A), the Detainee Treatment Act of 2005 (42 USC §2000dd), the Convention Against Torture and Common Article 3 of the GenevaConventions. 192The Field Manual does not purport to clarify the precise contours of statutory,constitutional, and international legality with respect to interrogationtechniques. However, the Manual expressly prohibits acts of violence or intimidation,including physical or mental torture, and exposure to inhumanetreatment, as a means of or aid to interrogation. 19378 Trials by Fire: Counterterrorism and the Law

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