Updated
- July 13, 2004
The
Interrogation Documents:
Debating U.S. Policy and Methods
"All
of those up and down the chain of command who bear any responsibility
must be held accountable for the brutality and humiliation they
inflicted on the prisoners and for the damage and dishonor that
they brought to our nation and to the United States armed forces,
which is otherwise filled with honorable men and women acting with
courage and professionalism to bring stability and security and
reconstruction to Iraq."
-- Senator Carl Levin (D-Mich), Senate Armed Services Committee
Hearing May 11 2004
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"There
must be a full accountability for the abuse of Iraq detainees and
important questions must be asked of the chain of command to understand
what happened, how it happened, when it happened and how those in
positions of responsibility either ordered, encouraged or authorized
-- or maybe looked the other way -- such conduct."
-- Senator John Warner (R-Va), Senate Armed Services Committee
Hearing May 19 2004
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On June 22, 2004, the White House officially released 14 documents
originating from the White House, the Pentagon and the Justice Department
concerning the Administration's interrogation policies. These records
include only one that previously was published by news media sources,
and did not include at least 5 additional documents widely reported
in the news media and already made available to the public by the
news media concerning interrogation policies from the White House,
Pentagon, Justice Department and Department of State. Still other
records are reported to exist or referenced in the already released
materials, but have not been made available -- either officially
or unofficially -- to the public. This Electronic Briefing Book
includes a comprehensive listing of available records relating to
U.S. interrogation policies, including records officially released
by the White House and
the Department of Defense on
June 22, leaked documents that have not
been officially released, and a description of 17 records
that have not been made available
to the public. In addition, this posting includes the
text of a congressional subpoena proposed by Senators Leahy and
Feinstein that was defeated on June 17, 2004 by the Senate Judiciary
Committee and a copy of the "Taguba
Report" detailing the findings of a Department
of Defense investigation into the treatment of prisoners at Abu
Ghraib Prison in Iraq.
WHITE
HOUSE RELEASE
The documents included in the June 22 White House release were
described by White House Counsel Alberto Gonzales as "two distinct
sets of documents, those that were generated by government lawyers
to explore the limits of the legal landscape as to what the Executive
Branch can do within the law and the Constitution as an abstract
matter; you also have documents that reflect the actual decisions
issued by the President and senior administration officials directing
the policies that our military would actually be obliged to follow."
Press
Briefing, June 22, 2004.
On June 8, 2004, the Senate Judiciary Committee held a hearing
concerning the role of the Justice Department in the interrogation
debates. During the hearing, members of the committee
asked Attorney General John Ashcroft about the content and status
of Justice Department and Pentagon memos which have not been officially
released. Ashcroft repeatedly refused to turn the memos over to
the committee, saying "The president has a right to receive
advice from his attorney general in confidence, and so do other
executive agencies of government. And this does not mean that there
can't be debate on such topics. It just means that the private advice
that the president gets from his attorney general doesn't have to
be a part of the debate."
At a press
conference two days later, President Bush was asked
about the Justice Department memos giving him authority to allow
any method of interrogation. He responded, "The authorization
I issued was that anything we did would conform to U.S. law and
would be consistent with international treaty obligations. That's
the message I gave our people… I can't remember if I've seen
the memo or not, but I gave those instructions."
Jan
22, 2002 - Department of Justice memo to White House and Defense
Department Counsels regarding the application of the War Crimes
Act and the Geneva Conventions
The 37-page memo, written by Assistant Attorney General Jay S.
Bybee, is addressed to White House Counsel Alberto R. Gonzales
and General Counsel at the Pentagon William J. Haynes II. The
memo states that President Bush is not bound by international
obligations to Afghanistan because it is a "failed state,"
and that therefore the War Crimes Act of 1984 and the Geneva Convention
do not apply to prisoners from the Afghanistan conflict.
[The memo was released on June 22, 2004. Obtained from The
Washington Post website at www.washingtonpost.com.]
Feb
1, 2002 - Department of Justice memo to President Bush reiterating
position against the application of Geneva Convention to al Qaeda
and the Taliban
The memo, written by Attorney General John Ashcroft, summarizes
the position of the Justice Department on why the Geneva Convention
does not apply to al Qaeda or Taliban prisoners. Ashcroft warns
against the possibility of U.S. officials being subject to prosecution
for violating U.S. and international laws if the Geneva Conventions
are applied.
[The memo was released on June 22, 2004. Obtained from The
Washington Post website at www.washingtonpost.com.]
Feb
7, 2002 - Department of Justice memo to the White House Counsel
on the status of Taliban combatants
The then Head of the Office of Legal Counsel at the Justice Department,
Assistant Attorney General Jay S. Bybee, states the Department's
conclusion that the President "has reasonable factual grounds"
to determine that members of the Taliban captured in Afghanistan
are not entitled to prisoner of war (POW) status under the Geneva
Convention.
[Released June 22, 2004. Obtained from The Washington Post
website at www.washingtonpost.com.]
Feb
7, 2002 - Memo from President Bush to his national security advisors
concerning the application of Geneva Convention in the Afghanistan
conflict
In the memo, President Bush states his belief that he has "the
authority under the Constitution" to determine that the Geneva
Convention does not apply to the conflict in Afghanistan, but
that he will "decline to exercise that authority at this
time." In accordance with the position of the Department
of Justice, he determines that the Geneva Convention on the Treatment
of Prisoners of War does not apply to members of the Taliban and
al Qaeda.
[Released June 22, 2004. Obtained from The Washington Post
website at www.washingtonpost.com.]
Feb
26, 2002 - Department of Justice memo to the Defense Department
General Counsel on the constitutional issues related to detainees
from the Afghanistan conflict
In a memo to General Counsel William J. Haynes II, Assistant
Attorney General Jay S. Bybee examines possible legal constraints
on the interrogation of Afghanistan prisoners, including whether
statements made during interrogations are admissible in military
commissions and whether individuals being interrogated will be
prosecuted.
[Released June 22, 2004. Obtained from The Washington Post
website at www.washingtonpost.com.]
Aug
1, 2002 - Department of Justice memo to White House Counsel stating
that interrogation methods used on al Qaeda prisoners comply with
international treaties prohibiting torture
The memo, written by Deputy Assistant Attorney General John C.
Yoo of the Office of Legal Counsel, advises White House Counsel
Alberto R. Gonzales that techniques used to interrogate members
of al Qaeda would not violate the Torture Convention of 1984,
and that such interrogations were not within the jurisdiction
of the International Criminal Court.
[Released June 22, 2004. Obtained from The Washington Post
website at www.washingtonpost.com.]
Aug
1, 2002 - Department of Justice memo to the White House Counsel
regarding the definition of torture
The memo from Assistant Attorney General Jay S. Bybee to White
House Counsel Alberto Gonzales examines the definition of torture
under the 1984 Torture Convention and its applicability to interrogations
outside of the United States. The Office of Legal Counsel concludes
that physical pain constituting torture "must be equivalent
in intensity to the pain accompanying serious physical injury,
such as organ failure, impairment of bodily function, or even
death." The memo also finds that the torture of suspected
terrorists for interrogation purposes might be legally defensible.
[Released June 22, 2004. Obtained from The Washington Post
website at www.washingtonpost.com.]
Dec
2, 2002 - Memo from the Department of Defense summarizing approved
methods of interrogation
The memo on "Counter-Resistance Techniques" was written
by the Defense Department's General Counsel, William J. Haynes
II, and later approved by Secretary of Defense Rumsfeld. It sets
out specific techniques for interrogation that can be used on
detainees at the U.S. detention center at Guantanamo Bay, Cuba.
A
related memo
issued on June 22, 2004, by White House officials reviews the
specific methods which were approved and used.
[Released June 22, 2004. Obtained from The Washington Post
website at www.washingtonpost.com.]
Jan
15, 2003 - Department of Defense memo from Secretary of Defense
Rumsfeld to the head of U.S. Southern Command on specific interrogation
techniques
The memo from Secretary of Defense Rumsfeld withdraws his approval
for some interrogation techniques used on detainees at Guantanamo
Bay. Secretary Rumsfeld allows for the use of harsher tactics
only if "warranted in an individual case" and explicitly
approved by him.
[Released June 22, 2004. Obtained from The Washington Post
website at www.washingtonpost.com.]
Jan
15, 2003 - Memo from Secretary of Defense Rumsfeld to Defense Department
Counsel regarding a review of interrogation policies
The memo from Secretary of Defense Rumsfeld to Counsel William
J. Haynes requests the creation of a working group "to assess
the legal, policy, and operational issues relating to the interrogations
of detainees."
[Released June 22, 2004. Obtained from The Washington Post
website at www.washingtonpost.com.]
Jan
17, 2003 - Department of Defense memo to the General Counsel for
the Air Force regarding the review of interrogation policies
The memo from Defense Department Counsel William J. Haynes designates
Mary Walker, General Counsel for the Air Force, as the chair of
the working group requested by Secretary of Defense Rumsfeld to
assess U.S. policies toward interrogation.
[Released June 22, 2004. Obtained from The Washington Post
website at www.washingtonpost.com.]
April
4, 2003 - Working Group Report from the Defense Department on interrogation
methods
The 85-page classified report, prepared for Secretary of Defense
Rumsfeld, reviews the "legal, historical, police and operational
considerations" regarding interrogations of detainees in
the war on terrorism. The report provides recommendations to the
Secretary of Defense on which interrogation techniques should
be approved. It also outlines U.S. laws and international treaties
concerning torture and discusses how national security concerns
or legal technicalities could overcome such restrictions. The
report states that, as commander-in-chief, President Bush is not
bound by domestic or international laws prohibiting torture and
that government agents who might have used torture under his direction
can not be prosecuted by the Justice Department.
[Released June 22, 2004. Obtained from The Washington Post website
at www.washingtonpost.com.]
An earlier draft of the report
was referenced by The Wall Street Journal and made available
by The Wall Street Journal on June 7, 2004. The draft,
dated March 6, 2003, lacks several pages included in the version
officially released on June 22, 2004: Pages 29-30, 34, 46, 49,
54-71, as well as the appendices on interrogation techniques and
recommendations. Sections from pages 7, 8, 26, 39, 41, and 42
have also been omitted or rewritten.
Apr
16, 2003 - Department of Defense memo from Secretary of Defense
Rumsfeld to the Head of the U.S. Southern Command regarding approved
interrogation methods
The memo restates the specific techniques of interrogation which
have been approved by the Secretary of Defense for use on detainees
at the U.S. detention facility at Guantanamo Bay. It identifies
additional measures which require Secretary of Defense Rumsfeld's
explicit approval.
[Released June 22, 2004. Obtained from The Washington Post
website at www.washingtonpost.com.]
DEPARTMENT OF DEFENSE RELEASE
The following nine documents relate to the development of interrogation
procedures at the U.S. military detention facility in Guantanamo
Bay, Cuba, and were released by the Department of Defense on June
22. Five of these records were also released by the White House
on the same day. According to the Department of Defense press release,
the documents were being "made available to demonstrate that
the actions of the U.S. Defense Department are bound by law and
guided by American values." The documents date from January
2002, when detainees were first brought to Guantanamo, and pertain
primarily to the development of interrogation techniques at the
facility through April 2004. Press
Release, June 22, 2004.
The following four documents were released by the Department of
Defense on June 22 but were not part of the White House release
the same day.
Jan
19, 2002 - Secretary of Defense Memo for Combatant Commanders,
"Status of Taliban and Al Qaida"
Secretary of Defense Donald Rumsfeld determines that Al Qaida
and Taliban detainees "are not entitled to prisoner of
war status for purposes of the Geneva Conventions of 1949."
However, detained individuals are to be treated "humanely,
and to the extent appropriate and consistent with military necessity,
in a manner consistent with the principles of the Geneva Conventions
of 1949."
Jan
21, 2002 - Message from Chairman, Joint Chiefs of Staff to Unified
Commands and Services, "Status of Taliban and Al Qaida"
This message transmits the secretary of defense
determination of Jan 19 to military combatant commanders.
Oct
11, 2002 - Memo for Commander Joint Task Force 170, "Counter
Resistance Strategies"
This memo requests authorization from the U.S. Southern Command
chief of a set of interrogation techniques described in an attached
memo. A second cover memo indicates that these techniques have
passed the legal review of Guantanamo's staff judge advocate.
The "Counter Resistance Strategies" document lists
three categories of increasingly severe interrogation methods.
The commander of Task Force 170, Maj. Gen. Michael Dunlavey,
believes that the procedures outlined in the memo "will
enhance our efforts to extract additional information."
Oct
25, 2002 - SOUTHCOM’s endorsement of the CJTF-170's request
Noting that "some detainees have tenaciously
resisted our current interrogation methods," U.S. Southern
Command chief James T. Hill recommends the adoption of the interrogation
techniques in the first two categories of techniques described
in the "Counter Resistance Strategies" memo attached
to the Oct 11 memo above. However, Gen. Hill is "uncertain
whether all the techniques in the third category are legal under
U.S. law" and requests further legal review of these methods.
Category three techniques include threats against detainees'
families, actions intended to simulate suffocation, exposure
to cold weather or water, and the use of "mild, non-injurious
physical contact."
The following five documents were released by both the Deparment
of Defense and the White House on June 22. Summaries of these documents
are included above in the "White
House Release" section.
Dec
2, 2002 - Memo from the Department of Defense summarizing approved
methods of interrogation
Jan
15, 2003 - Department of Defense memo from Secretary of Defense
Rumsfeld to the head of U.S. Southern Command on specific interrogation
techniques
Jan
15, 2003 - Memo from Secretary of Defense Rumsfeld to Defense
Department Counsel regarding a review of interrogation policies
April
4, 2003 - Working Group Report from the Defense Department on
interrogation methods
Apr
16, 2003 - Department of Defense memo from Secretary of Defense
Rumsfeld to the Head of the U.S. Southern Command regarding approved
interrogation methods
LEAKED
DOCUMENTS NOT INCLUDED IN THE WHITE HOUSE RELEASE
The following records were leaked to the news media and have been
widely reported and made available to the public by various news
media sources. These records were not included in the June 22 White
House release.
Dec
28, 2001 - Department of Justice memo to the Defense Department
with regard to the U.S. jurisdiction over Guantanamo prisoners
The memo, written by lawyers Patrick F. Philibin and John Yoo
of the Office of Legal Counsel, concludes that the U.S. does not
have jurisdiction over habeas petitions of detainees in Guantanamo
Bay, Cuba. The memo states that federal courts cannot review cases
of mistreatment or mistaken arrest from prisoners in Guantanamo
Bay because the detainees are being held outside U.S. territory.
[Referenced in "Double Standards?" by Michael Isikoff,
Newsweek, May 25, 2004. Obtained from the Newsweek
website at www.newsweek.com.]
Jan
9, 2002 - Department of Justice memo concerning the bearing of international
laws prohibiting torture on President Bush and the U.S. military
The memo, entitled "Application of Treaties and Laws to
al Qaeda and Taliban Detainees," was written by lawyers John
Yoo and Robert J. Delahunty. It states: "Any customary international
law of armed conflict in no way binds, as a legal matter, the
President or the U.S. Armed Forces concerning the detention or
trial of members of al Qaeda and the Taliba." The memo concludes
that suspected terrorist detainees can be prosecuted for violating
these same laws: "We do not believe that these courts would
lose jurisdiction to try members of al Qaeda or the Taliban militia
for violations of the laws of war, even though we have concluded
that the laws of war have no binding effect [obscured] on the
President."
[Referenced in "Double Standards?" by Michael Isikoff,
Newsweek, May 25, 2004. Obtained from the Newsweek
website at www.newsweek.com]
Jan
25, 2002 - Memo from White House Counsel to President Bush opposing
the application of Geneva Conventions to the conflict in Afghanistan
White House Counsel Alberto Gonzales states that as Chief Executive,
President Bush has the authority to determine whether the Geneva
Convention III on the Treatment of Prisoners of War (GPW) does
or does not apply, and reiterates the position of the Office of
Legal Counsel of the Justice Department that it does not. The
position is justified, Gonazales writes, by the status of Afghanistan
as a failed state that is unable to fulfill its international
obligations and the "militant, terrorist-like" nature
of the Taliban and its forces.
[Referenced in "Memos Reveal War Crimes Warnings" by
Michael Isikoff, Newsweek, on May 17, 2004. Obtained
from the Newsweek website at www.newsweek.com]
Jan
26, 2002 - Department of State memo from Colin Powell in response
to the White House Counsel's position on the application of Geneva
Conventions
The 5-page memo, addressed to the President's Counsel and the
Assistant to the President for National Security Affairs, outlines
the "options available" to the President in deciding
the applicability of the Geneva Conventions to the Afghanistan
conflict. Secretary Powell identifies numerous advantages for
applying the Conventions, including providing "the strongest
legal foundation" for future military action, preserving
the "credibility and moral authority" of the U.S., and
protecting American forces and officials from criminal investigations.
[Referenced in "Memos Reveal War Crimes Warnings" by
Michael Isikoff, Newsweek, on May 17, 2004. Obtained
from the Newsweek website at www.newsweek.com]
Feb
2, 2002 - Department of State memo to the White House Counsel advising
that the Geneva Conventions should apply
The 5-page memo from State Department Legal Advisor William H.
Taft to Counsel Alberto Gonzales discusses the legal considerations
surrounding the application of the Geneva Conventions, emphasizing
the advantages of applying the Convention. An attachment to the
memo outlines the positions taken by lawyers from the Department
of Justice, Department of Defense, Department of State, the White
House Counsel, and the Office of the Vice President.
[Referenced in "Documents Build a Case for Working Outside
the Laws on Interrogating Prisoners" by Neil A. Lewis, New
York Times, June 9, 2004. Obtained from The New York Times.]
On May 7, 2004, The Wall Street Journal published
excerpts of a confidential report by the International Committee
of the Red Cross on detention in Iraq. The 24-page report,
dated January 2004 and submitted to Coalition Forces
the following month, was based on inspections and interviews which
took place from March to November 2003, including a visit to Abu
Ghraib in mid-October. It concludes that abuse of Iraqi prisoners
by U.S. military intelligence personnel was widespread and in some
cases "tantamount to torture." According to the report,
ICRC officials warned military intelligence officers of abuse at
Abu Ghraib after witnessing mistreatment in the fall of 2003, but
were told that harsh and brutal tactics were "part of the process"
when trying to "obtain confessions and extract information."
Overall, the report says ICRC investigations "suggested the
use of ill-treatment against persons deprived of their liberty went
beyond exceptional cases and might be considered a practice tolerated
by" coalition forces.
-- Excerpts made available by The Wall Street Journal,
"Red Cross Found Widespread Abuse of Iraqi Prisoners,"
7 May 2004
March
12, 2004 - Report from Maj. General Antonio Taguba detailing the
findings of a Department of Defense investigation into the treatment
of prisoners at Abu Ghraib Prison in Iraq ("Taguba Report")
In January 2004 the senior U.S. commander in Iraq
authorized an investigation of the conduct of the 800th Military
Police Brigade, the unit in charge of detention and internment
operations of detainees and other prisoners at Abu Ghraib prison
in Baghdad. The report, prepared by Maj. General Antonio Taguba,
sharply criticizes the unit for mistreatment of detainees at the
facility, including various acts of physical, psychological and
sexual abuse. The report also finds that interrogators from military
and civilian intelligence organizations "actively requested"
that personnel from the 800th MP Brigade "set the physical
and mental conditions for favorable interrogation of witnesses."
[Referenced in "Torture at Abu Ghraib" by Seymour Hersh,
The New Yorker, April 30, 2004]
"At
the end of the day, a few soldiers and civilians conspired to
abuse and conduct egregious acts of violence against detainees
and other civilians outside the bounds of international law
and the Geneva Convention. Their incomprehensible acts, caught
in their own personal record of photographs and video clips,
have seriously maligned and impugned the courageous acts of
thousands of U.S. and coalition forces. It puts into question
the reputation of our nation and the reputation of those who
continue to serve in uniform, and who would willingly sacrifice
their lives to safeguard our freedom."
--
General Antonio Taguba, Senate Armed Services Committee hearing
May 11 2004
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ADDITIONAL RECORDS THAT HAVE NOT BEEN RELEASED
"The
stonewalling in the prison abuse scandal has been building to
a crisis point. Yesterday, responding to public pressure, the
White House has released a small subset of the documents that
offers a glimpse into the genesis of this scandal. There are many
items missing from this release, however, including all but three
of the 23 items Judiciary Committee Democrats requested in the
subpoena that was voted down by Republicans last week. Where are
the 20 remaining documents? Perhaps the most ominous omission
is the lack of any documents reflecting White House involvement
in this issue since military action began in Iraq last year. The
released documents do not include a single reference to the treatment
or interrogation of detainees in Iraq, despite the heinous abuses
at Abu Ghraib that we have all seen with our own eyes."
-- Senator Patrick Leahy (D-Ver), Floor Statement, June
23 2004
The following 16 records are included in a congressional
subpoena proposed by Senators Leahy and Feinstein that
was defeated on June 17, 2004 by the Senate Judiciary Committee:
1.
Memorandum for Timothy E. Flannigan, Deputy Counsel to the President,
from John Yoo, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: The President's authority to conduct military operations
against terrorists and nations supporting them (Sept. 25, 2001);
2.
Memorandum for Alberto Gonzales, Counsel to the President, from
Patrick F. Philbin, Deputy Assistant Attorney General, Office
of Legal Counsel, Re: Legality of the use of military commissions
to try terrorists (Nov. 6, 2001);
3.
Draft Memorandum for William J. Haynes, General Counsel, Department
of Defense, from John Yoo, Deputy Assistant Attorney General,
and Robert J. Delahunty, Special Counsel, Office of Legal Counsel,
Re: Application of treaties and laws to al Qaeda and Taliban detainees
(January 9, 2002);
4.
Memorandum for John Yoo, Deputy Assistant Attorney General, Office
of Legal Counsel, from James C. Ho, Attorney-Advisor, Office of
Legal Counsel, Re: Possible interpretations of Common Article
3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners
of War (Feb. 1, 2002);
5.
Memorandum for Daniel J. Bryant, Assistant Attorney General, Office
of Legal Counsel, from Patrick F. Philbin, Deputy Assistant Attorney
General, Office of Legal Counsel, Re: Swift Justice Authorization
Act (Apr. 8, 2002);
6.
Memorandum for General James T. Hill from Defense Secretary Rumsfeld,
Re: Coercive interrogation techniques that can be used with approval
of the Defense Secretary (Apr. 2003);
7.
Memorandum from CJTF-7, Re: Applicability of Army Field Manual
34-52 and sensory deprivation (Sept. 10, 2003);
8.
Directive of Lt. General Ricardo Sanchez entitled "Interrogation
and Counter-Resistance Policy" (Sept. 12, 2003);
9.
Memorandum from CJTF-7 on interrogations (Sept. 28, 2003);
10.
Memorandum for MI personnel at Abu Ghraib, Re: Interrogation rules
of engagement (Oct. 9, 2003);
11.
Memorandum for Commander of MI Brigade from Lt. General Ricardo
Sanchez, Re: Order giving military intelligence control over almost
every aspect of prison conditions at Abu Ghraib with the explicit
aim of manipulating the detainees' "emotions and weaknesses"
(Oct. 12, 2003);
12.
Memoranda for Review and Appeal Board at Abu Ghraib from Detainee
Assessment Branch (Nov. 1, 2003 through Jan. 31, 2004);
13.
Memorandum for MP and MI personnel at Abu Ghraib from Colonel
Marc Warren, the top legal adviser to Lt. General Ricardo Sanchez,
Re: New plan to restrict Red Cross access to Abu Ghraib (Jan.
2, 2004);
14.
Memorandum for Superiors from Maj. General Antonio Taguba, Re:
Results of investigation into the 800th MP Brigade's actions in
Abu Ghraib (Mar. 12, 2004);
15.
Memorandum from the Department of Justice, Re: Liability of interrogators
under the Convention Against Torture and the Anti-Torture Act
when a prisoner is not in U.S. custody.
16.
Review, study, or investigation report by LTC Chamberlain, Re:
State of prisons in Iraq (addressing the proportion of innocent
people in the prisons and the release procedures for detained
Iraqis).
The following document has been described in the news media, but
has not been officially or unofficially released.
17.
January 11, 2002 - State Department memo concerning the violation
of international laws
In response to the Department of Justice memo of January 9,
2002, the Legal Advisor's office headed by William Howard Taft
IV warns that any presidential actions that violated international
law would "subject the United States to adverse international
consequences in political and legal for a and potentially in
the domestic courts of foreign countries."
[Referenced in "Double Standards?" by Michael Isikoff,
Newsweek, May 25, 2004.]
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