Shortly after the
Invasion of Afghanistan, the Bush administration announced a policy that combatants captured "on the battlefield" in Afghanistan would not be afforded the protections of
POW status as described in the
Geneva Conventions. This policy triggered debate both within and outside of the US government. The Bush administration claimed that the Geneva Conventions signed by the US protected only the fighters of recognized states, thus disqualifying al Qaeda fighters from these privileges as per the Bush administration's views. They argued that, since the
Taliban was not a legitimate government either, their combatants did not qualify either. They saw Afghanistan as a "failed state," one without a legitimate government.
Classifying captives as illegal combatants The Bush administration categorized such captives as "
illegal combatants." These terms are not explicitly used in the Geneva Conventions, but the
Third Geneva Convention of 1949 defines the term "
lawful combatant", from which the term 'unlawful combatant' is derived. The Convention obliges signatories to afford captured lawful combatants significant rights and protections. Such captives are entitled to be classified as
prisoners of war (POW). Internal critics within the US military and US government argue that failing to afford POW protections to combatants captured in the global war on terror would endanger American military personnel when they were captured in current and future conflicts. Other critics argue that classifying all combatants as illegal combatants is in violation of Article 5 of the Third Geneva Convention, which describes how a captor should treat combatants who are suspected of violating the Geneva Conventions such that they strip themselves of its protections. Article 5 says that combatants suspected of violations of the Conventions are to be afforded POW protection until the captors have convened a "
competent tribunal." However, the Conventions never explicitly impose a limitation regarding the detention of detainees without trial during and after an armed conflict. The Bush administration expanded the criteria for classifying captives as illegal combatants. Individuals captured around the world are now classified as such if US intelligence officials believe they have sufficient evidence to tie the individual to
Islamic terrorism. In
Rasul v. Bush (2004), the
US Supreme Court ruled that detainees held by the United States did have the
habeas corpus right to challenge their detentions before a competent tribunal. This decision led the Bush administration to bolster the prevalence of
black sites overseas.
Use of interrogation techniques The US intelligence community has debated what techniques should be used on the detainees.
Legal justification for the use of "enhanced interrogation techniques" Secretary Rumsfeld assured the world that the detainees held at the
Guantanamo Bay Naval Base were going to be treated in a manner consistent with the treatment of Geneva Convention POWs. In 2004, confidential memos surfaced that discussed the limits to how much pain, discomfort and fear could be used in the interrogation of detainees in the global war on terror. The memos showed that debate within the Bush administration had been resolved in favor of what was later legally determined to be torture.
Legislative challenges to interrogation policy In 2005,
US Senator John McCain, a former POW from the
Vietnam War, attached a passage to a military spending bill that would proscribe inhumane treatment of detainees and restrict US officials to use only the interrogation techniques in the
US Army's
field manual on interrogation. Ninety of the one hundred Senators supported this amendment. On Thursday, October 20, 2005,
Vice President Dick Cheney proposed a change to McCain. Cheney tried to get McCain to limit the proscription to just military personnel, thus allowing CIA personnel the freedom to use harsher techniques. McCain declined to accept Cheney's suggestion.
U.S. Government denial of allegations of mistreatment The
United States government, through the
State Department, makes periodic reports to the
United Nations Committee Against Torture. In October 2005, the report focused on pretrial detention of suspects in the
war on terrorism, including those held in Guantanamo Bay and
Afghanistan. This was the first official response of the U.S. government to allegations that prisoners were mistreated at
Guantanamo Bay detention camp. The report denies the allegations. However, the report does not address detainees held elsewhere by the
CIA. Recently, the Director of the CIA,
Michael Hayden has acknowledged that some detainees had been subject to waterboarding, in accordance with several OLC (Office of Legal Counsel) memos. General Hayden states that in February 2008, waterboarding was not part of the authorized interrogation techniques for U.S. agents. The
CIA's
Inspector General investigated cases in which men were captured and transported through "
erroneous renditions." There were said to be 3,000 individuals who were held in CIA custody.
Geneva Conventions compliance On July 20, 2007, President Bush issued an executive order officially banning torture of POWs by intelligence officials.{{cite news | url=https://www.reuters.com/article/politicsNews/idUSN2029519720070720
Individuals identified as being tortured by the CIA without authorization ==Location of the suspects held by US civilian intelligence agencies==