Detainees - United States policy toward Detainees: a Dossier

Detainees sit around the exercise yard in Camp 4, the medium security facility within Camp Delta at Naval Station Guantanamo Bay, Cuba. In Camp 4, highly compliant detainees live in a communal setting and have extensive access to recreation. Photo by U.S. Army Sgt. Sara Wood.

Key U.S. Policy Priorities

Executive Order: Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency , July 20, 2007.

The Order interprets the meaning and application of Common Article 3 with respect to certain detentions and interrogations. Specifically, the interpretation of Common Article 3 set forth in this Order is applied to the Central Intelligence Agency's detention and interrogation program whose purpose is to question captured Al Qaeda terrorists who have information on attack plans or the whereabouts of the group's senior leaders.

The Order requires that any CIA interrogation program that might go forward comply with all relevant federal statutes, including the prohibition on "cruel, inhuman, or degrading treatment or punishment" in the Detainee Treatment Act of 2005, the federal prohibition on torture, and the War Crimes Act, all of which protect against violations of Common Article 3. The Order imposes other explicit limitations on interrogation techniques and conditions of confinement in a CIA program. It bars, "acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel and inhuman treatment." It also prohibits "willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts beyond the bounds of human decency." And the Order forbids acts intended to denigrate detainees' religion, religious practices, or religious objects.

Unlawful enemy combatants The White House determined in February 2002 that Taliban detainees are covered under the Geneva Conventions, while Al Qaeda detainees are not, but that none of the detainees qualifies for the status of prisoner of war (POW) under the Conventions. The Bush Administration has deemed all of the detainees to be “unlawful enemy combatants,” who may, according to Administration officials, be held indefinitely without trial or even were they eventually acquitted by a military tribunal. However, the detainees at Guantanamo Bay have been allowed to meet with representatives of the International Committee of the Red Cross (ICRC) and diplomatic representatives of their States of nationality.

Combatant Status Review Tribunals After the U.S. Supreme Court held that U.S. courts have jurisdiction to hear legal challenges on behalf of more than 500 persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba in connection with the war against terrorism, the Pentagon established administrative hearings, called “Combatant Status Review Tribunals” (CSRTs), to allow the detainees to contest their status as enemy combatants.

Military Commissions have historically been used to prosecute enemy combatants who violate the laws of war. They provide:
A fair trial in accordance with the applicable laws of war; All the necessary judicial guarantees which are recognized as indispensable by civilized peoples for purposes of common Article 3 of the Geneva Conventions; Appropriate protection of national security interests; and Protection and safety for all personnel participating in the process, including the accused.

The United States and International Law We do not seek to impose constraints on others but shrink from them ourselves. Our careful approach to treaty negotiation and treaty acceptance reflects our respect for international law, not a desire to be free of it. When we assume international obligations, we take them seriously and seek to meet them, even when doing so is painful. And where international law applies, all branches of the U.S. government, including the judiciary, will enforce it.