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INDEPENDENT PANEL TO REVIEW DOD DETENTION OPERATIONS

detained and interrogated: (1) persons who have engaged in or assisted those who engage in terrorist or insurgent activities; and (2) persons who have come by information regarding insurgent and terrorist activity.

By engaging in such activities, persons in the first category may be detained as criminals or enemy combatants, depending on the context. Persons in the second category may be detained and questioned for specific information, but if they do not represent a continuing threat, they may be detained only long enough to obtain the information.

Permissions and Limits on Interrogation Techniques

For the U.S., most cases for permitting harsh treatment of detainees on moral grounds begin with variants of the "ticking time bomb" scenario. The ingredients of such scenarios usually include an impending loss of life, a suspect who knows how to prevent it-and in most versions is responsible for it-and a third party who has no humane alternative to obtain the information in order to save lives. Such cases raise a perplexing moral problem: Is it permissible to employ inhumane treatment when it is believed to be the only way to prevent loss of lives? In periods of emergency, and especially in combat, there will always be a temptation to override legal and moral norms for morally good ends. Many in Operations Enduring Freedom and Iraqi Freedom were not well prepared by their experience, education, and training to resolve such ethical problems.

A morally consistent approach to the problem would be to recognize there are occasions when violating norms is understandable but not necessarily correct --that is, we can recognize that a good person might, in good faith, violate standards. In principle, someone who, facing such a dilemma, committed abuse should be required to offer his actions up for review and judgment by a competent authority. An excellent example is the case of a 4a Infantry Division battalion commander who permitted his men to beat a detainee whom he had good reason to believe had information about future attacks against his unit. When the beating failed to produce the desired results, the commander

INDEPENDENT PANEL TO REVIEW DOD DETENTION OPERATIONS

fired his weapon near the detainee's head. The technique was successful and the lives of U.S. servicemen were likely saved. However, his actions clearly violated the Geneva Conventions and he reported his actions knowing he would be prosecuted by the Army. He was punished in moderation and allowed to retire.

In such circumstances interrogators must apply a “minimum harm” rule by not inflicting more pressure than is necessary to get the desired information. Further, any treatment that causes permanent harm would not be permitted, as this surely constitutes torture. Moreover, any pain inflicted to teach a lesson or after the interrogator has determined he cannot extract information is morally wrong.

National security is an obligation of the state, and therefore the work of interrogators carries a moral justification. But the methods employed should reflect this nation's commitment to our own values. Of course the tension between military necessity and our values will remain. Because of this, military professionals must accept the reality that during crises they may find themselves in circumstances where lives will be at stake and the morally appropriate methods to preserve those lives may not be obvious. This should not preclude action, but these professionals must be prepared to accept the consequences.

Ethics Education

The instances of detainee abuse in Iraq and Afghanistan do indicate a review of military ethics education programs is needed. This is not to suggest that more adequate ethics education will necessarily prevent abuses. Major service programs such as the Army's "core values," however, fail to adequately prepare soldiers working in detention operations.

While there are numerous ethics education programs throughout the services, almost all refer to certain "core values" as their foundation. Core-values programs are grounded in

INDEPENDENT PANEL TO REVIEW DOD DETENTION OPERATIONS

organizational efficacy rather than the moral good. They do not address humane treatment of the enemy and noncombatants, leaving military leaders and educators an incomplete tool box with which to deal with "real-world” ethical problems. A professional ethics program addressing these situations would help equip them with a

sharper moral compass for guidance in situations often riven with conflicting moral obligations.

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[Questions for the record with answers supplied follow:]

QUESTIONS SUBMITTED BY SENATOR SUSAN COLLINS

GHOST DETAINEES

1. Senator COLLINS. Dr. Schlesinger, do we know precisely how many detainees were kept off the books?

Dr. SCHLESINGER. No, our panel did not have that information. Indications were that there was a small, though significant, number. In just one case was the authorization at senior levels of the department sought.

2. Senator COLLINS. Dr. Schlesinger, what was the motivation for this? Was it due to concerns that mistreatment of these prisoners would be revealed or was it because military leadership wanted to keep the identities of these individuals secret? Dr. SCHLESINGER. The motivation in the DOD was to accommodate the DCI, and whatever authorization he may have had from higher levels. I suspect that the purpose was to keep unknown the questioning of particular individuals—rather than that they were being "mistreated," which in any event was certainly not authorized. As a general proposition, military leadership was uneasy about keeping identities of these individuals secret, and was, in some cases, resisted.

COOPERATION WITH CENTRAL INTELLIGENCE AGENCY AND DEPARTMENT OF DEFENSE

3. Senator COLLINS. Dr. Schlesinger, were you satisfied with the level of cooperation you received from the CIA and the DOD?

Dr. SCHLESINGER. Our panel was created by Secretary Rumsfeld for the DOD. We received total cooperation from the DOD. We are not authorized to investigate the CIA. We did receive some courtesies from the agency, but I would not characterize it as cooperation.

QUESTIONS SUBMITTED BY SENATOR EDWARD M. KENNEDY

GENEVA CONVENTIONS

4. Senator KENNEDY. Dr. Schlesinger, your report suggests you are recommending the U.S. needs to redefine its understanding of international human rights law in relation to the global war on terrorism. Do you believe that international human rights laws do not provide for terrorists or enemy combatants?

Dr. SCHLESINGER. The Geneva Conventions adopted in 1949, envisaged a continuation of wars between nation states. It did not envisage insurgencies (and was never applied by colonial powers) or "wars of national liberation." More importantly, it clearly does not apply to terrorism. The attempt in the 1970s to redress these omissions through Protocol I was regarded by the United States as inappropriate, if not pernicious, in treating terrorists as prisoners of war.

I believe that international law in the form of the Geneva Conventions does, indeed, provide for enemy or illegal combatants in that those entitled to protection as prisoners of war must meet specific standards. Therefore, by logic, if they do not meet those specific requirements, they are not entitled to prisoner of war status. If they are engaged in combat, therefore, they logically belong in a different categoryof enemy or illegal combatant. On the other hand, it is quite clear that international law deals quite ineffectively with widespread terrorism, and should be adjusted to deal with terrorism.

5. Senator KENNEDY. Dr. Schlesinger, do you feel that international human rights law is inadequate, even though it includes basic requirements related to conditions and treatment of prisoners or internees, specifically provides for the prosecution of combatants and of “enemy combatants" alike for criminal conduct and/or war crimes carried out during a conflict?

Dr. SCHLESINGER. International law provides adequately for the prosecution of criminal conduct and/or war crimes carried out in a conflict. It does not provide adequately for criminal conduct carried on as terrorism.

6. Senator KENNEDY. Dr. Schlesinger, do you believe that the Third and Fourth Geneva Conventions allow indefinite detention without any independent legal re

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