[Weekly Compilation of Presidential Documents Volume 43, Number 30 (Monday, July 30, 2007)]
[Pages 1000-1002]
[Online from the Government Publishing Office, www.gpo.gov]
<R04>
Executive Order 13440--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
By the authority vested in me as President and Commander in Chief of
the Armed Forces by the Constitution and the laws of the United States
of America, including the Authorization for Use of Military Force
(Public Law 107-40), the Military Commissions Act of 2006 (Public Law
109-366), and section 301 of title 3, United States Code, it is hereby
ordered as follows:
Section 1. General Determinations. (a) The United States is engaged
in an armed conflict with al Qaeda, the Taliban, and associated forces.
Members of al Qaeda were responsible for the attacks on the United
States of September 11, 2001, and for many other terrorist attacks,
including against the United States, its personnel, and its allies
throughout the world. These forces continue to fight the United States
and its allies in Afghanistan, Iraq, and elsewhere, and they continue to
plan additional acts of terror throughout the world. On February 7,
2002, I determined for the United States that members of al Qaeda, the
Taliban, and associated forces are unlawful enemy combatants who are not
entitled to the protections that the Third Geneva Convention provides to
prisoners of war. I hereby reaffirm that determination.
(b) The Military Commissions Act defines certain prohibitions of
Common Article 3 for United States law, and it reaffirms and reinforces
the authority of the President to interpret the meaning and application
of the Geneva Conventions.
Sec. 2. Definitions. As used in this order:
(a) ``Common Article 3'' means Article 3 of the Geneva Conventions.
(b) ``Geneva Conventions'' means:
(i) the Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, done at
Geneva August 12, 1949 (6 UST 3114);
(ii) the Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea, done at Geneva August 12, 1949 (6 UST 3217);
(iii) the Convention Relative to the Treatment of Prisoners of
War, done at Geneva August 12, 1949 (6 UST 3316); and
(iv) the Convention Relative to the Protection of Civilian
Persons in Time of War, done at Geneva August 12, 1949 (6
UST 3516).
[[Page 1001]]
(c) ``Cruel, inhuman, or degrading treatment or punishment'' means
the cruel, unusual, and inhumane treatment or punishment prohibited by
the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the
United States.
Sec. 3. Compliance of a Central Intelligence Agency Detention and
Interrogation Program with Common Article 3. (a) Pursuant to the
authority of the President under the Constitution and the laws of the
United States, including the Military Commissions Act of 2006, this
order interprets the meaning and application of the text of Common
Article 3 with respect to certain detentions and interrogations, and
shall be treated as authoritative for all purposes as a matter of United
States law, including satisfaction of the international obligations of
the United States. I hereby determine that Common Article 3 shall apply
to a program of detention and interrogation operated by the Central
Intelligence Agency as set forth in this section. The requirements set
forth in this section shall be applied with respect to detainees in such
program without adverse distinction as to their race, color, religion or
faith, sex, birth, or wealth.
(b) I hereby determine that a program of detention and interrogation
approved by the Director of the Central Intelligence Agency fully
complies with the obligations of the United States under Common Article
3, provided that:
(i) the conditions of confinement and interrogation practices
of the program do not include:
(A) torture, as defined in section 2340 of title 18, United
States Code;
(B) any of the acts prohibited by section 2441(d) of title 18,
United States Code, including murder, torture, cruel or
inhuman treatment, mutilation or maiming, intentionally
causing serious bodily injury, rape, sexual assault or
abuse, taking of hostages, or performing of biological
experiments;
(C) other acts of violence serious enough to be considered
comparable to murder, torture, mutilation, and cruel or
inhuman treatment, as defined in section 2441(d) of title
18, United States Code;
(D) any other acts of cruel, inhuman, or degrading treatment or
punishment prohibited by the Military Commissions Act
(subsection 6(c) of Public Law 109-366) and the Detainee
Treatment Act of 2005 (section 1003 of Public Law 109-148
and section 1403 of Public Law 109-163);
(E) 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 to be beyond the
bounds of human decency, such as sexual or sexually indecent
acts undertaken for the purpose of humiliation, forcing the
individual to perform sexual acts or to pose sexually,
threatening the individual with sexual mutilation, or using
the individual as a human shield; or
(F) acts intended to denigrate the religion, religious
practices, or religious objects of the individual;
(ii) the conditions of confinement and interrogation practices
are to be used with an alien detainee who is determined by
the Director of the Central Intelligence Agency:
(A) to be a member or part of or supporting al Qaeda, the
Taliban, or associated organizations; and
(B) likely to be in possession of information that:
(1) could assist in detecting, mitigating, or
preventing terrorist attacks, such as attacks within the
United States or against its Armed Forces or other
personnel, citizens, or facilities, or against allies or
other countries cooperating in the war on terror with
the United States, or their armed forces or other
personnel, citizens, or facilities; or
(2) could assist in locating the senior leadership of
al Qaeda, the Taliban, or associated forces;
(iii) the interrogation practices are determined by the Director
of the Central Intelligence Agency, based upon professional
advice, to be safe for use
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with each detainee with whom they are used; and
(iv) detainees in the program receive the basic necessities of
life, including adequate food and water, shelter from the
elements, necessary clothing, protection from extremes of
heat and cold, and essential medical care.
(c) The Director of the Central Intelligence Agency shall issue
written policies to govern the program, including guidelines for Central
Intelligence Agency personnel that implement paragraphs (i)(C), (E), and
(F) of subsection 3(b) of this order, and including requirements to
ensure:
(i) safe and professional operation of the program;
(ii) the development of an approved plan of interrogation
tailored for each detainee in the program to be
interrogated, consistent with subsection 3(b)(iv) of this
order;
(iii) appropriate training for interrogators and all personnel
operating the program;
(iv) effective monitoring of the program, including with respect
to medical matters, to ensure the safety of those in the
program; and
(v) compliance with applicable law and this order.
Sec. 4. Assignment of Function. With respect to the program
addressed in this order, the function of the President under section
6(c)(3) of the Military Commissions Act of 2006 is assigned to the
Director of National Intelligence.
Sec. 5. General Provisions. (a) Subject to subsection (b) of this
section, this order is not intended to, and does not, create any right
or benefit, substantive or procedural, enforceable at law or in equity,
against the United States, its departments, agencies, or other entities,
its officers or employees, or any other person.
(b) Nothing in this order shall be construed to prevent or limit
reliance upon this order in a civil, criminal, or administrative
proceeding, or otherwise, by the Central Intelligence Agency or by any
individual acting on behalf of the Central Intelligence Agency in
connection with the program addressed in this order.
George W. Bush
The White House,
July 20, 2007.
[Filed with the Office of the Federal Register, 10:16 a.m., July 23,
2007]
Note: This Executive order was published in the Federal Register on July
24. This item was not received in time for publication in the
appropriate issue.