TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

The Detainee Treatment Act (DTA) adopts the language of the UN ConventionAgainst Torture (CAT) in prohibiting “cruel, inhuman, or degradingtreatment or punishment” of detainees, as interpreted through the Fifth,Eighth, and Fourteenth Amendments to the US Constitution. 194• When passed in 2005, the DTA applied only to individuals in Pentagonfacilities, and not to facilities maintained by other government agencies.However, EO 13491 sets the DTA as a guideline for all executiveagencies by invoking the Army Field Manual as the government-widestandard for interrogations. 195• The DTA’s proscription of “cruel, inhuman, or degrading treatment”constitutes a more stringent protection than the mere prohibition of‘torture’ in the federal torture statute. 196EO 13491 explicitly disallows US government officers and agents from relyingupon interrogation law interpretations issued by the Department of Justicebetween 11 September 2001 and 20 January 2009. 197 Thus, all government employeesmust comply with the Army Field Manual guidelines, unless and untilfurther guidance is issued.Proposed Legal DefensesAs noted in the foregoing discussion, EO 13491 explicitly prohibits relianceupon the Bush-era OLC interrogation memos, certain of which purport toprovide legal justification for interrogation techniques generally consideredillegal by lawyers and academics. For example, an August 2002 OLC memosuggested that a defendant could raise a necessity—or “choice of evils”—defenseto an allegation that the interrogator had violated the federal torturestatute or other statutory prohibitions against torture. 198 Another related legaldefense proffered by the memo was a self-defense (against the threat of animpending attack on American citizens) theory. 199 While these legal theorieshave not been rejected by superseding OLC opinions or binding judicial decisions,their validity has been the subject of considerable debate. 200Belfer Center for Science and International Affairs | Harvard Kennedy School79

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