Interrogation and Treatment of Detainees in the Global War on Terror

Abstract

Abstract Interrogation is at the core of the legal debates regarding the al Qaeda and Taliban members detained by the U.S. government after the inception of the Global War on Terror (GWOT) in October 2001. The desire to obtain timely and accurate intelligence from captured terrorists drove the discussion, from the fall of 2001 to late 2008, when Supreme Court cases, legislation, and policy developments restored specific law of war standards to the U.S. military’s treatment and interrogation of detainees. In the interim, the military (with substantial policy direction from the leadership of the U.S. Department of Defense, the U.S. Department of Justice’s office of Legal Counsel [OLC], and the White House) essentially abandoned its long-standing reliance on law of war treaties and principles applicable to international armed conflict as the base-line for the treatment of detained terrorists, in favor of a narrowly drawn legal position that allowed the U.S. government to selectively use aggressive interrogation and treatment techniques that did not comport with the time-tested law of war standards traditionally applied by the military to all of its detainees. Although the change in approach to the application of the law of war was resisted at every level by the military legal community, some of the aggressive interrogation and treatment techniques adopted for these terrorists were able to migrate to the field and resulted in mistreatment of detainees in several instances [despite the efforts of many Judge Advocates in the chain of command]. It is only in the last three years that those standards of treatment have been restored and reinforced for military personnel engaged in GWOT.