Legal Affairs – We Don’t Need to Be Scofflaws to Attack Terror

National Journal

Modern terrorism "renders obsolete [the] strict limitations on questioning of enemy prisoners" required by the 1949 Geneva Conventions, White House Counsel Alberto R. Gonzales wrote in a memo drafted for President Bush (leaked to The Washington Times), "and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges … athletic uniforms and scientific instruments."

That was an ill-advised memo. It exemplifies the cavalier attitude toward international law and world opinion that seems widespread in the upper reaches of the Bush Administration and among conservative hard-liners. With our European allies already in an overwrought tizzy about the supposed mistreatment of the 158 detainees at Guantanamo Bay, Cuba, and about Bush’s general impatience with what he calls "legalisms," it doesn’t help to have the President’s lawyer dismissing as "obsolete" a solemn treaty obligation that protects our own forces as well as others. And while Bush has scrambled to limit the damage, the Guantanamo controversy has seriously compromised our ability to rally the support we desperately need for a struggle that will rage on many fronts for many years.

This is not to deny that the imperative of national survival trumps any conflicting rules of international law. But the Gonzales memo seems wrong in suggesting that the law-specifically, the Third Geneva Convention, Relative to the Treatment of Prisoners of War-conflicts with our security needs. And the Administration’s initial position that Geneva does not apply to the Guantanamo detainees at all-which Bush is (at this writing) reconsidering at the behest of Secretary of State Colin L. Powell-seems incorrect.

International law is no more a suicide pact than the Constitution is. And Geneva is flexible enough to allow both aggressive interrogation and long-term incarceration-without commissary privileges, athletic uniforms, or other frills-of suspected Al Qaeda terrorists captured abroad.

The treatment of the 158 detainees seems humane, and the Administration seems right in its basic position that international terrorists fanatically bent on mass murder are not entitled to Geneva’s protections for POWs. As defined by Geneva, not all prisoners captured in war are "prisoners of war." The convention implicitly recognizes a category of detainees, long-known as "unlawful combatants," who can be treated far more harshly. Members of and collaborators with Al Qaeda, perhaps including all of the Guantanamo 158, fit into that category.

The distinction is important primarily because unlawful combatants can be interrogated more aggressively, detained indefinitely, and tried with fewer procedural protections than POWs. Geneva provides (in Article 17) that once POWs have given their name, rank, date of birth, and serial number, "no physical or mental torture, nor any other form of coercion, may be inflicted … to secure from them information of any kind whatsoever," and that POWs "who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind." But Geneva requires no such kid-glove treatment for unlawful combatants. Another international convention does prohibit torturing any detainees, but not all coercive interrogation and rough treatment is torture. Insistent and vehement questioning of unlawful combatants during prolonged isolation should qualify as legitimate, especially if the information sought could save lives.

Geneva also requires (in Article 118) that POWs, unless convicted of war crimes, be "released and repatriated without delay after the cessation of active hostilities." Unlawful combatants can be locked up indefinitely, even if there is no evidence to implicate them in specific war crimes. An alternative basis for indefinite detention would be that there will be no "cessation of hostilities" for years in the Al Qaeda jihad.

So, complying with Geneva would not compromise our security needs. The problem with the Administration’s position is that it appears to have flouted (or at best wriggled around) Article 5 of Geneva, which states that "should any doubt arise" as to the status of captured fighters, "such persons shall enjoy the protection of the present convention until such time as their status has been determined by a competent tribunal."

Bush and Defense Secretary Donald Rumsfeld have claimed that there is no doubt that all Guantanamo detainees are unlawful combatants. But the government has not (at this writing) bothered to put any evidence before any tribunal. It’s hard to see a good reason not to go through this modest exercise in due process and give any detainee who claims that he is a POW, not a terrorist, a chance to make his case. Surely, the United States would object if any other nation followed our example by issuing an executive fiat classifying dozens of captured American special forces operatives or bomber pilots as unlawful combatants and terrorists.

The hearings need not be long or elaborate. Proof to a three-member military tribunal that a non-Afghan detainee had joined Al Qaeda or been trained at an Al Qaeda camp should suffice to classify him as an unlawful combatant. On the other hand, an Afghan foot soldier for the Taliban-as distinguished from a Taliban commander who had actively coordinated with terrorist leaders-would qualify as a POW under a generous reading of Geneva.

Here’s why: Geneva’s little-noticed Article 4(A)(1) awards POW status to "members of the armed forces of a Party to the conflict" or "members of militias or volunteer corps forming part of such armed forces"-even, arguably, if they wear no identifying uniform or sign, even if they commit prosecutable war crimes, even if the "Party" is not a recognized government (there’s a bit of ambiguity on this point), and even if it systematically violates the laws of war. This definition seems broad enough to fit low-level fighters for the Taliban, which was the de facto (if unrecognized) government of Afghanistan. It does not fit Al Qaeda fighters.

Some human rights activists claim that those Al Qaeda fighters who were captured on the Taliban front lines qualify as POWs because they were "part of" Afghanistan’s armed forces, but this seems wrong. All members of Al Qaeda, wherever captured, took their orders not from the Taliban but from Osama bin Laden and his non-Afghan lieutenants, who were not the de facto government of any nation. And all are would-be terrorists-part of a worldwide conspiracy to infiltrate and murder civilian populations-whose release would endanger many lives, and whose information (if extracted) might save many lives.

The second relevant Geneva definition, Article 4(A)(2), adds to the POW category members of militias and armed groups operating independent of any nation’s "armed forces" only if they have a responsible command structure, wear a uniform or "fixed distinctive sign recognizable at a distance," carry arms openly, and operate "in accordance with the laws and customs of war." A group must fit all four requirements for its members to get POW status. Al Qaeda fits none of them.

The logic underlying Article 4(A)(2) is that saboteurs, partisans, spies, and terrorists (as we now call them) who infiltrate civilian populations dressed as civilians to destroy life or property, or who endanger civilians by hiding among them when enemy forces approach, or whose commanders allow them to violate the laws of war, are uniquely dangerous and not entitled to the protection of those laws.

Some U.S. officials also see Taliban foot soldiers as unlawful combatants. But this is a stretch. Such a position could come back to haunt our own special forces and would be hard to reconcile with past practices, including the POW status accorded to captured German soldiers during World War II (in the midst of the ultimate war crime-the Holocaust), captured Chinese during the Korean War, and captured Vietcong during the Vietnam War. Besides, we have no compelling reason to deny POW status to Taliban foot soldiers: Unlike Al Qaeda members, they would have little if any useful information and would pose no threat to us if released.

The bottom line is that the Geneva Conventions, properly interpreted, are not an anachronistic nuisance but a potent tool in our war effort. But unless we comply with Geneva, and act as though we care about complying, our growing reputation as an international scofflaw will congeal and become a potent rallying cry for those who would sabotage the war effort. This, in turn, would cost us critical opportunities to nail Al Qaeda terrorists in Europe, where so many lurk.

It’s true that many of our European critics are anti-American hypocrites who habitually turn a blind eye to egregious human rights violations in the Arab world and in Castro’s Cuba. Many others, however, simply want to see us practice the humility and respect for the rule of law that we preach.