Bush Ordered “Humane” Treatment in Feb. 2002. Then What?

This evening the White House released the text of an order signed by President Bush on Feb. 7, 2002, regarding the treatment of al-Qaida and Taliban detainees.

This Bush order applies to the Afghanistan Taliban, and to alleged al-Qaida members in Iraq and worldwide; it says they don't have rights, but doesn't say that they should be tortured; rather it says they should be treated “humanely” and that they should be given Geneva-like privileges when not too inconvenient to do so.

The order accepts the Royalist theory of Presidential power, but says it declines to apply it: “I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.”

al-Qaida and Taliban fighters are claimed to all be outside the Geneva 3 framework (POWs) regardless of citizenship or circumstances. [And presumably it's possible to tell who is al-Qaida and who isn't just by looking at them?]

al-Qaida members are claimed be outside Geneva 4 (protection of civilians) regardless of citizenship beause they are “armed combatants” (even when not carrying weapons?).

The key command: “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

On its own, this reads as an instruction to be humane at all times, and to follow Geneva when not too inconvenient. Whether this complies with international law or not, it does not read as a license to torture, which is presumably why the White House is releasing it. Note, however, that this order would, for example, be a license to create “ghost” detainees from among the Taliban and al-Qaida (but not other Iraqis).

Note also what's not there. For example, nothing in this memo seems directed to the CIA, just to the military. I wonder if there's a separate order for the CIA with more … flexibility?

It's also important to keep the confusing timeline straight. The OLC torture memo was delivered in August 2002, i.e. several months after this order. Thus, it is clear that this command, in Feb. 2002, to be “humane” was not the last word on the subject in the minds of all policy makers, including the President's closest advisors such as his Legal Counsel. And we know that the Walker Group was still chewing on the torture question in March 2003, although we don't know what if anything came of it.

In short, we don't know if this memo was ever countermanded, or amended, whether it applied to the CIA, or indeed what if anything ultimately resulted from subsequent advice to Bush that he could allow great physical pain to be applied during questioning of detainees. We do know, however, that as early as February 2002, in this memo, Bush had signed on to the dangerous theory of nearly unlimited Presidential power that informed the torture memos. We also know that in those months after this memo issued, many people around Bush were recommending, or prepared to recommend, that inhumane conduct was legal and justified.

UPDATE: The New York Times reports

White House counsel, Alberto R. Gonzales, told reporters on Tuesday that Mr. Bush never considered more aggressive options set out by administration lawyers, including those in an August 2002 Justice Department memo that appeared to offer a permissive definition of torture.

Full text of the Feb. 7, 2002 Bush order below.

1. Our recent extensive discussions regarding the status of al-Qaida and Taliban detainees confirm that the application of Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, (Geneva) to the conflict with al-Qaida and the Taliban involves complex legal questions. By its terms, Geneva applies to conflicts involving “High Contracting Parties,” which can only be states. Moreover, it assumes the existence of “regular” armed forces fighting on behalf of states. However, the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our nation recognizes that this new paradigm — ushered in not by us, but by terrorists — requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva.

2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows:

a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva.

b. I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise the authority in this or future conflicts.

c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to “armed conflict not of an international character.”

d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.

3. Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

4. The United States will hold states, organizations, and individuals who gain control of United States personnel responsible for treating such personnel humanely and consistent with applicable law.

5. I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

6. I hereby direct the secretary of state to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach.

PS. It's just a minor point, but AFAIK the text of this memo was released after the evening news, and late for tomorrow's papers. Was this an attempt to lessen coverage? Or maybe an attempt to get the papers to rely on whatever spin points were being leaked this afternoon?

Update: Judging from the stories in tomorrow's newspapers, it made their deadlines!

This entry was posted in Iraq Atrocities, Law: Constitutional Law, Law: International Law. Bookmark the permalink.

50 Responses to Bush Ordered “Humane” Treatment in Feb. 2002. Then What?

  1. Jake Nelson says:

    It seems to me this is the closest thing they have to a statement or order by Bush opposing the torture memos and their doctrine, and as such, they’re rushing to release it.

    The trouble is, when I say “the closest thing”, it’s because it by no means contradicts those memos. The fact that this is the best they can produce seems to me to be greater proof that there was nothing stopping the worst possible acts. Only slight cover about only doing evil when it had some gain.

    On the late timing, I’m assuming they’re trying to mitigate the impact of releasing this mid-week, as opposed to their usual Friday dump.

  2. nick says:

    Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva.

    Like what facts? There’s no justification presented here whatsoever. There are no conditions that need to be satisfied under Article 4 for ‘Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.’ You could possibly cite the ‘laws and customs of war’ argument under the Hague Convention, but that’s a real stretch.

    ‘I determine’. Not just King of America, but King of Afghanistan too.

    And no Article 5 hearings were held in Afghanistan. This is a matter of record. Article 4 was just used as toilet paper.

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  5. It’s a perfectly clear admission that Bush ordered the torture of detainees

  6. exgop says:

    There’s one worrisome phrase that keeps popping up as a qualifier that still allows for pretty much whatever: “to the extent appropriate and consistent with military necessity.” What does that mean? It looks like a giant loophole to me.

  7. phil says:

    Since we clearly got from “Maybe we should consider torture” to “Lookie, we’re applying torture!”, it doesn’t matter how many times the Bush administration waffled in between.

  8. Emphyrio says:

    Emphyrio here.

    to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

    The insurgency pushes the Iraq project toward disaster.

    The insurgency must be stopped as a matter of military necessity.

    Geneva principals are therefore discarded.

    Geoffrey Miller comes to Abu Ghraib to import Guantanimo techniques.

    Torture starts.

    DUMP THE TORTURE PRESIDENT

  9. Jimm says:

    key graf (repeated twice in memo):

    As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

    Shorter version:

    We’ll abide by the Geneva Conventions unless we’re losing and decide to torture people.

  10. cynic says:

    notice the weasel words:

    I reserve the right to exercise the authority in this or future conflicts.

    ’nuff said.

  11. JC says:

    1. Paragraph 1: Bush says the war on terror “requires new thinking in the law of war,…” Was this thinking conveyed to Congress? Did Bush seek approval for new laws? The Constitution says Congress passes new laws; the President approves and executes. Did Bush skip the Congress part?

    2. Paragraph 2b: Was Afghanistan a signor to Geneva? If so, how could Bush unilaterally declare Afghanistan fighters not to be protected by Geneva? (Same points by Nick @ 10:59)

    3. Paragraph 3: law to be followed “to the extent appropriate and consistent with military necessity…” Does the law permit the President, on his own, to add qualifiers?
    I don’t think so. (same points as Nick @ 10:59)

    4. Paragraph 6: Secretary of State to inform other nations. Did Powell do so, and why did the UK, Australia and others not cry out to demand that Geneva be followed?

  12. Evelyn Blaine says:

    Note that the full text of the Walker memo is now available on line:

    http://www.defenselink.mil/news/Jun2004/d20040622doc8.pdf

    (link via http://www.intel-dump.com)

    I just glanced through it, but the appendix (a chart of 35 techniques) merits a look. By far the most distressing is sleep deprivation – with the note “not to exceed 4 days in succession.” (The prisoner is said to be allowed to “rest briefly”, but it’s not clear exactly what “briefly” means.) Hallucinations can start as early as 40-48 hours into sleep deprivation, although this varies tremendously from individual to individual; by 96 hours full-blown psychosis is quite possible. At that point, I have absolutely no problem calling this torture — not just inhumane treatment, but *torture* as that term is contemplated in international and domestic law and generally used by people with a conscience, regardless of the tergiversations of the memo.

    (See also this story: http://news.bbc.co.uk/1/hi/magazine/3376951.stm)

  13. Cynical says:

    At least he didn’t use the royal “we”…

  14. asdf says:

    “And so, by the power of Grayskull, I, George Walker Bush, hereby declare the US Constitution null and void.”

  15. Geneik says:

    “Hey, don’t you Old Yur’peeans an’ the rest o’ the world realize that It’s Okay If You’re A Republican? Dang! How many times do I gotta ‘splain that to ya? Karl and Dick and Rummy and my wife Condi tole me it’s all good!”

  16. Merle says:

    “4. The United States will hold states, organizations, and individuals who gain control of United States personnel responsible for treating such personnel humanely and consistent with applicable law.”

    Filthy bastards could foresee that this action and the torture they were authorizing would lead to retaliation against American captives.

  17. Arne Langsetmo says:

    I note that the brilliant lawyers that drew this up for Dubya seem to think that the Fourth Geneva Convention relates to prisoners of war:

    1).
    d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.

    In addition, these are conventionially termed the “Third Geneva Convention” (“relative to the treatment of prisoners of war”) and the “Fourth Geneva Convention” (“relative to the protection of civilian persons in time of war”), and not “Article 3″ or “Article 4″ as the presidential directive seems to refer to them.

    Are these a bunch of legal incompetents drawing this stuff up? Do they really not know WTF the Geneva Conventions say???

    Cheers,

  18. Melissa O says:

    Nice try, Bushites. Someone realized that the mere EXISTENCE of the original torture memo strongly implied that Bush had already ordered torture.

    Well, as it stands, there are still two choices:
    1. Bush ordered torture
    2. Rumsfeld ordered torture, and should go to jail for breaking the law of the land.

    The problem of whether Bush should go to jail for breaking the law of the land I leave as an exercise for the SCOTUS.

    But come on, does ANYONE still believe that Bush didn’t know what was going on? What was that thing that was on BusyBusyBusy.com? “Don’t blame Defense Secretary Rumsfeld for the war crimes, he was just following orders.”

    Can anyone imagine the Bush we know and love saying, “Oh no, I hate terrorists, but this is going too far!!”? Puh-lease.

  19. David says:

    Actually, Bush said that torture was wrong back in June 2003:

    United Nations International Day in Support of Victims of Torture

    http://www.whitehouse.gov/news/releases/2003/06/20030626-3.html

    I especially like these lines:

    “Torture anywhere is an affront to human dignity everywhere.”

    and

    “Freedom from torture is an inalienable human right.”

  20. David says:

    Hat tip to Tim Dunlop for that Bush UN torture statement.

    http://www.roadtosurfdom.com/surfdomarchives/002446.php

  21. Gramma Millie says:

    When the Preznit ordered the military to continue treating detainees humanely, he neglected to point out that the dental work performed on Dustin Hoffman by the exiled Nazi in “Marathon Man” would have easily met his definition of humanely.

    In all seriousness, why does it seem that everyone — Froomkin included — assumes the Preznit’s definition of “humanely” is even remotely similar to the definition understood by the remaining 5.1 billion people on the planet?

  22. Gramma Millie says:

    In response to Phil: So what we’re basically learning here is that Bush is, once again, the reigning Queen of Flip Flop.

  23. Bill says:

    So he didn’t authorize torture on that day in February 2002. So what.

    “I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan… I reserve the right to exercise the authority in this or future conflicts.”

  24. JC says:

    Bill comment @ 10:25. That should be the headline of today’s newspapers: “President claims power to set aside the law.” Unbelievable. UnAmerican.

    Instead, we get a repeat of the selectively declassified, self-serving statement that Bush directed detainess to be treated “humanely”. Duh!

    The headlines don’t even add the qualifier: “as convenient…”

    Does the press not understand the importance of what Bush has done?

  25. Gramma Millie says:

    JC, you nailed it. The story is right in front of the media but of course they don’t *see* it.

    What do they see? “Look over there … it’s that fat independent film maker who is about to single handedly bring down our entire democracy!!!”

    Perfect rice, every time.

  26. RoguePlanet says:

    I wonder if this memo is what Bush was referring to on June 10 when he talked about the “instructions” he gave: http://www.whitehouse.gov/news/releases/2004/06/20040610-36.html

  27. Dem says:

    Arne Langsetmo: Not to defend this memo, but when they wrote “Article 4 of Geneva” they certainly meant “Article 4 of the 3rd Convention”, which defines who that convention protects.

    However, more troubling is the fact that this memo, like almost all formal and informal communications from this administration, fails to mention the 4th convention. They must be aware of it, but they act like it does not exist. To a layman, the term “civilian” may equate to “innocent bystander”, and so the layman may mistakenly believe that the 4th convention does not apply to soldiers found in Afghanistan. But the lawyers in the administration must know that “civilian” is really anyone not protected by one of the other conventions, and includes anyone found in a war zone under any circumstances.

    Furthermore the administration lawyers do not address, but must know, the fact that P.o.W. status: 1) cannot be stripped without a “competent tribunal”, of which none has been provided for those caught in Afghanistan, and 2) does not require “uniforms” in all cases … that the 3rd convention allows for people spontaneously fighting back against invaders. They are making three assertions here to support their blanket determination that no one found in Afghanistan can be protected by the 3rd convention. First, that the Al Quaeda is a non-state organization and therefore their fighters cannot be P.o.W.s. Second, that the Taliban is not a legitimate government and therefore their fighters cannot be P.o.W.s. Third, that anyone they detain is either Al Quaeda or Taliban. The first assertion has some merit, but a competent tribunal is required to determine whether the person actually is Al Quaeda. The second assertion has no merit … the Taliban was the ruling government of Afghanistan and was even recognized as such by the US prior to 9-11. The third assertion cannot be made en masse. Many of those fighting may have been citizens who joined the resistance after the attacks began.

  28. Cecil Turner says:

    ISTM the interesting points here are: 1) accepting “humane” treatment of detainees as a requirement; 2) reserving the right to “suspend” Third Geneva; 3) blanket dismissal of POW rights for both Taliban and Al Qaida detainees; 4) no discussion of Fourth Geneva at all. Professor Froomkin highlighted all the above (except my reading differs a bit on point 4).

    Each seems defensible (though the “humane” theory is a bit nebulous, and there appears to have been a flip-flop on it in the later “torture” memo). Probably the least palatable (and most debatable) point is the “royalist” idea that a president’s authority as Commander in Chief trumps an interfering treaty. But it’s hypothetical–and the underlying argument of the supremacy of the Constitution over a treaty is not remarkable. (While actually finding a conflict between Geneva and CiC powers would be.)

    There also appears to be some confusion on the treaty specified. E.g.,
    In addition, these are conventionially termed the “Third Geneva Convention” (“relative to the treatment of prisoners of war”) and the “Fourth Geneva Convention” (“relative to the protection of civilian persons in time of war”), and not “Article 3″ or “Article 4″ as the presidential directive seems to refer to them.

    Since they’re talking about POW treatment, it should be obvious the reference is to Third Geneva (and in fact it properly introduces the shorthand in the first para). And in particular, Article 4:
    “A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
    1. Members of the armed forces . . .” etc. (On this particular point, their contention is that the Taliban don’t fit any of the listed categories–and I tend to agree.)

    But except referring to “common Article 3,” AFAICT there’s no reference to any Fourth Geneva provision.

  29. Kristjan Wager says:

    2. Paragraph 2b: Was Afghanistan a signor to Geneva? If so, how could Bush unilaterally declare Afghanistan fighters not to be protected by Geneva?

    Yes, Afghanistan was a signor to the Geneva Conventions (they signed it 08.12.1949 – European format, US format: 12.08.1949).

  30. paul lukasiak says:

    When considered together, these memos plus the Bush administration’s position on the non-applicability of Constitutional protections with regard to detainees made one thing abundantly clear to those in charge of the detainees…

    As far as the Bush administration was concerned, there was NO LEGAL PROTECTION for detainees from torture and abuse. In essence, the military and CIA were being told that “anything goes” as long as no one gets caught and the President is embarrassed—that there were no APPLICABLE laws that forbade the torture of detainees.

    It is the Bush administration’s creation of an extra-legal “environment” in which the detainees were held that lead to the torture and abuse of prisoners at Abu Graib once General Miller recommended that the prison be “Gitmo-ized”. “Gitmo” was, according to the Bush administration, not subject to ANY laws prohibiting torture and abuse. It is no wonder, then, that Fredericks, Graner, England and company look absolutely comfortable and confident in the abuse photos from the prisons—they had been Gitmo-ized, and were in an environment in which the law did not apply to them.

  31. nick says:

    (On this particular point, their contention is that the Taliban don’t fit any of the listed categories–and I tend to agree.)

    With respect, I disagree. There’s more evidence to describe the Taliban as ‘militias or volunteer corps’ than to the contrary, based upon the entire history of the Afghan civil war in the 1990s. The Taliban was the de facto government of Afghanistan, which is the important factor here, not whether the US recognised that government. (There’s a more detailed discussion on this here.)

    As I said, one could probably stretch to invoke the 1907 Hague Convention as a justification for saying that Taliban militia didn’t obey the ‘laws and customs of war’. But that would mean, were the US to be subject to foreign invasion, that those who followed the spirit of the Second Amendment and donned camouflage as part of ‘a well-regulated militia’ — even those in the National Guard, were the command structure sufficiently broken down — could be subject to the same ‘determination’ that they were ‘unlawful combatants’, and that POW status didn’t apply.

    And the fate of many of those Afghans subject to detention without any attempt to determine their status is slowly becoming clear.

  32. Cecil Turner says:

    “With respect, I disagree. There’s more evidence to describe the Taliban as ‘militias or volunteer corps’ than to the contrary, based upon the entire history of the Afghan civil war in the 1990s. The Taliban was the de facto government of Afghanistan, which is the important factor here, not whether the US recognised that government.”

    We beat this topic to death in the “Yoo Unrepentant” thread. IMO the issue is not whether the US recognized the Taliban, but whether they met the four conditions required of militias to qualify for POW status:
    “(a) That of being commanded by a person responsible for his subordinates;

    (b) That of having a fixed distinctive sign recognizable at a distance;

    (c) That of carrying arms openly;

    (d) That of conducting their operations in accordance with the laws and customs of war. “

    IMO, they don’t. I’m also not sure of a need to reference Hague, since the “laws and customs of war” bit is inherent in Geneva as well.

  33. Dave says:

    Fuck the Geneva Convention, fuck the hague, fuck POW laws and fuck technicalities, beaurocracy, and loopholes. I don’t need a piece of paper written by fat old men dead or dying to tell me what is torture, or whether it is lawful. The idea that anyone should pissed off about the fact that GB and his cronies are disobeying laws rather than the fact that they are doing things that are wrong is proof that there is no hope for humanity, except in the areas of anime and manga.

  34. Chris says:

    Ah, isn’t the “I accept the legal conclusion that…” no laws apply to me, etc., *so* precious. *HE* accepts!

    Of course, I’m a little puzzled in that I believe–though I could be mistaken–the DOJ or the AG have as much authority to tell Bush he is above the law as they do to declare him Pope.

  35. JC says:

    Dave @ 8:53 If ya ain’t angry, ya ain’t paying attention!

    It is also why we have laws. To protect the accused (and even the guilty against cruel and unusual punishment).

    It’s why we all need to stay outraged at an administration that looks to evade the law. Or to declare the President above the law, choosing when it applies.

    This adminstrastion has played upon human’s basic emotion of fear. Wrapped fear in the flag and led a war. And at the height of it all – Mission Accomplished – rammed through a terribly inequitable tax cut – one that most people truly do not understand how inequitable it is. (Dave, I hope you don’t pay more than 15% in taxes. The wealthy got their flat tax, set at an unbelievable 15%, on capital gains and dividends.)

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  37. C Chilliak says:

    The operative principle here seems to be ” We Decide”
    Does the Geneva convention apply to this conflict ? We Decide
    Is this person protected by the Geneva convention? We Decide
    Is this activity torture? We Decide
    If it is torture, can the perpetrators be liable? We Decide
    Is the USA bound by international law? We Decide

  38. Charles says:

    Non-uniformed partisans are a novel concept?

    Certainly not since the American Revolutionary War and the “Indians” who dumped tea into the Boston Harbor.

    The Geneva Conventions apply even to non-uniformed partisans.

    Of course, shooting combatants rather than capturing them has always been an option. Torturing, no.

  39. TahitiNut says:

    The baseless claim that members of the Taliban or al-Qaeda are not protected by the Geneva Conventions because they’re not High Signing Authorities to those Conventions is the equivalent to saying that members of the Democratic Party or the VFW are not protected by the Geneva Conventions.

    By issuing this memorandum and subsequent reports, the Bush/Cheney regime, in their law enforcement role, has clearly proclaimed that any order to engage in such acts cannot be viewed as an “illegal order” which military personnel are obliged to disobey. If, after all, the Commander in Chief (and chief law enforcement officer) can issue such an order, as he claims he has the authority to do, then such an order cannot be viewed as “illegal” – since such orders are inherently so or not so independent of the level of authority.

    This is a “Get Out of Jail Free” card unless and until, as in Nuremberg, those proclaiming the legality of such an order are prosecuted, convicted, and imprisoned. The Nuremberg Defense is only ethically invalid if the command authorities themselves are held accountable. Until then, due to the implicit and explicit state sanctions for such actions, the USA is an outlaw nation.

  40. Dem says:

    Cecil Turner: You are cherry-picking from the 4th article of the 3rd convention. The text you quoted was only ONE of a SIX categories listed for people who qualify for P.o.W. status. The first and sixth categories are of particular interest in both Afghanistan and Iraq:

    (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

    (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

    For completeness, the other 3 categories are:

    (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

    (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

    (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

  41. Cecil Turner says:

    Dem,

    “Cecil Turner: You are cherry-picking from the 4th article of the 3rd convention. The text you quoted was only ONE of a SIX categories listed for people who qualify for P.o.W. status. The first and sixth categories are of particular interest in both Afghanistan and Iraq:

    I cherry-picked the one category having to do with other “militias and volunteer corps,” because that seemed to be the category Nick referred to in the immediately preceding post. (In retrospect, he may have meant militias who make up part of the “armed forces,” but since he avoided that term, I assumed he meant the second category.) You are apparently claiming the Taliban is a regular armed force (which I agree is a stronger argument–if only because they fail miserably to meet the four requirements).

    The counterargument is that they lack many of the usual trappings of such a force, including regimental and clear command structure, uniforms, identity cards, standardized equipment, etc. Instead of distinguishing themselves from civilians, they take pains to blend in. And instead of maintaining a discipline structure to ensure laws of war are followed, they systematically worked to use Geneva provisions perfidiously (using protected sites to shield military equipment, sham surrenders, etc). None of those (except arguably the ID card) are hard requirements, but taken as a whole, tend to discredit the “regular” characterization.

    I assume you’re using the “spontaneously take up arms” argument for Iraqis, since that wouldn’t seem to apply to the Taliban. (And it contradicts the “regular” claim.) If so, I agree. I don’t think it could be applied to the Taliban, and even if it did, they’d still have the requirement to “respect the laws and customs of war.”

  42. Dem says:

    Cecil: Thanks for the response. Actually, my argument, from a previous post, is that neither with the Iraqis nor the Afghanis can one make a blanket statement that none of them qualify for P.o.W. status. Each case must be decided individually, and when in doubt, must be decided by competent tribunal.

    In the case of someone found in Afghanistan, the fact that they may not wear uniforms, etc., does not automatically disqualify because of the 6th category. In fact, the claim of P.o.W. status on the 6th category is hard to disprove unless you can demonstrate each individual does not meet the proviso that “they carry arms openly and respect the laws and customs of war.” Although some will not meet this proviso, others may. And even if the person was part of the ranks of the Taliban prior to the invasion, they could still make this claim.

  43. Mojo says:

    “However, the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states.”
    I seem to remember a little conflict we had back in the 60s and 70s where a group (the Viet Cong) with international reach (they operated in Vietnam, Laos, Cambodia, etc.) committed horrific acts against civilians (please don’t pretend it never happened), sometimes with the direct support of states (including joint military operations with North Vietnamese regulars). I think we’ve had ample opportunity to settle appropriate behavior in these cases in the past 30 years. Terrorism isn’t new either. To say that a single attack changes all the rules we’ve established is simply ludicrous! It’s saying, “Here are the rules all civilized people will live by, unless somebody is mean to me.”

  44. Cecil Turner says:

    Dem,

    You’re welcome. I appreciate the discussion.

    There is no right to a tribunal prior to detention. Nor is a tribunal necessary unless a “doubt” should “arise” whether the detainee belongs in one of the “categories enumerated in Article 4.” The order doesn’t state that every Afghan is an unlawful combatant, but that “Taliban detainees” are. If the Taliban as a group doesn’t meet the requirements for a militia (and IMO that’s a very defensible position), then the members of the Taliban don’t qualify for POW status. I’m not aware of a requirement for individual determination in such cases, but if there is one, it has historically been honored most often in the breach.

    There’s no doubt the state has a right to detain combatants (lawful or not), and punish those who violate the laws of war. Traditionally, those held as unlawful combatants (whether called “armed prowlers,” “franc-tireurs,” “saboteurs,” or “spies”) are detained at the convenience of the detaining power, and need only receive a tribunal prior to punishment. Typically, status is determined at that time.

    From Qurin:
    “By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”

    The applicability of Protocol I is debatable, but it does address the issue directly (article 45):
    “2. If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated. Whenever possible under the applicable procedure, this adjudication shall occur before the trial for the offence.” (Section 1 of the same article also states a presumption of POW status–but it’s obvious from section 2 that there are cases in which a detainee may not have had a tribunal and is not held as a POW–and this in the most generous of the conventions.)

  45. Dem says:

    Cecil: I agree with most of what you wrote. Yes, there is no question that detention precedes tribunal. Furthermore, there are many lawful circumstances that permit detention in a war zone. And yes, detainees can be charged, prosecuted and punished. The question is whether the person being detained is a “protected person” under the 3rd conventions for P.o.W.s, and if not, whether he/she is a “protected person” under the 4th convention for civilians.

    Where we still disagree is that I would argue that no blanket determination can be made that anyone who is a member of the Taliban is automatically not permitted P.o.W. status. This can be asserted, but each individual has the right to challenge that determination in a competent tribunal. The question of “doubt” is an interesting one. If it can be argued that in some cases individual Taliban met the definition of P.o.W., then I assert there is enough doubt that no blanket assertion can be made. Since Category 6, in particular, sets much less stringent requirements for qualification than the others, it is very possible if not likely that some of the Taliban could qualify for P.o.W’s under this category..

    In addition, one related point worth exploring: I would argue that even with out P.o.W. status they are “protected persons” under the 4th convention.

    If you agree with my last sentence, then the question of whether he is entitled to P.o.W. status is, for the most part, moot until/unless that person is criminally charged for an act that would be permissable had he had P.o.W. status. In that case, the charge must be filed in a court and, as you point out, at that point the accused can assert P.o.W. rights and “adjudication shall occur before the trial for the offence”.

  46. nick says:

    I cherry-picked the one category having to do with other “militias and volunteer corps,” because that seemed to be the category Nick referred to in the immediately preceding post. (In retrospect, he may have meant militias who make up part of the “armed forces,” but since he avoided that term, I assumed he meant the second category.)

    No, Cecil, I meant the first.

    I take the section (1) definition to imply that if a HCP employs ‘militias and volunteer corps’ as its de facto regular armed forces, they still fall under that classification and thus eligible for POW status provided that they abide by the laws & customs of war. That’s to say, there’s no explicit presumption that a HCP’s armed forces should by necessity have a structure akin to, say, the US military. That’s why we step back to the Hague Convention’s definitions of the laws & customs of war. And the benefit of the doubt lies with those captured: determination of whether a member of the Taliban militia is a franc-tireur requires an Article 5 hearing. None took place.

    Taliban militia were, for all intents and purposes, the armed forces of the government of Afghanistan. They certainly didn’t ‘spontaneously take up arms’ in response to the US invasion because Afghanistan was still, in many regions, in a state of civil war. Much of the north, in particular, was an active war zone, and that’s where many of the Gitmo detainees were picked up, straight off Taliban lines and positions ranged against ‘Northern Alliance’ factions in areas of disputed control. This is usually overlooked. There was a command structure, if a loose and baggy one. But no looser or baggier than any other militia in the country. (Nobody seems to remember that most Northern Alliance militia would be unlawful combatants by such criteria.)

    And while you may be under the perception that the Taliban invariably fought like spies and franc-tireurs, again, the evidence of the 1990s suggests otherwise. It’s mainly that the ‘trappings’ of command structure and uniform, much of which was obvious when Afghans were fighting one another and open displays of affiliation were essential, got lost in the comparison to Americans with their dogtags, military IDs and govt-issue uniforms. Now, one could make the case that the Taliban are to be held at fault for fighting in garb that other Afghans could plainly recognise, but the newly-arrived Americans couldn’t. Or that the Taliban were at fault for not realising that civil wars and wars against invading forces must be fought differently. Those would be pretty pathetic cases, of course.

    Here’s a hypothetical: imagine a civil war in Switzerland, in which members of the huge civilian militia were engaged in a state-vs-opposition conflict, and a foreign state launched an invasion on the side of the opposition. Would militia members loyal to the state, wearing their old camouflages and using their state-issued rifles in open combat, be considered eligible for POW status? I certainly think so.

    Which means, Cecil, that your discussion of the other categories in Article 4, with respect to Taliban militia, seems somewhat moot. And this isn’t just my opinion, but the opinion of plenty of people in the international law business.

  47. Cecil Turner says:

    Dem,

    “Where we still disagree is that I would argue that no blanket determination can be made that anyone who is a member of the Taliban is automatically not permitted P.o.W. status. This can be asserted, but each individual has the right to challenge that determination in a competent tribunal.”

    I’m not sure we disagree much here, either. Essentially the Administration has asserted the Taliban do not qualify for POW status. I agree those detained have a right to challenge that determination at a tribunal–but that tribunal need not be held unless or until the government wishes to punish the detainee (either by executing him or transferring him to a normal prison), or at the end of hostilities if they don’t wish to release him. That last time frame is a bit nebulous, especially for Al Qaeda types, but for a Taliban detainee it’s past time to either charge or release him.

    “In addition, one related point worth exploring: I would argue that even with out P.o.W. status they are “protected persons” under the 4th convention.”

    They sure seem to be. And this is by far the weakest part of the subsequent legal analysis (Bybee “torture” memo). At the least it should have examined whether article 31 of Fourth Geneva applied (“No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.”), and what exceptions (e.g., from article 5) might be appropriate in cases affecting national security. IMO a case could be made for less than perfect observance of some Fourth Geneva provisions in some cases, but the OLC apparently didn’t even consider it.

  48. Dem says:

    Cecil: Thanks for your clarifications. I’ve learned something by going back to the articles you cited and rethinking them.

    In terms of article 5 of the 4th, I can’t see how the exceptions described pertain to anything except communication, namely: 1) perhaps keeping the fact that the person has been captured a secret, and 2) preventing communications from the detainee to the outside world.

  49. Cecil Turner says:

    Nick,
    “And while you may be under the perception that the Taliban invariably fought like spies and franc-tireurs , again, the evidence of the 1990s suggests otherwise. It’s mainly that the ‘trappings’ of command structure and uniform, much of which was obvious when Afghans were fighting one another and open displays of affiliation were essential, got lost in the comparison to Americans with their dogtags, military IDs and govt-issue uniforms.

    The requirement is to distinguish themselves from the civilian population (so that attacks won’t be directed against the latter). How they do it is of course up to them, but I don’t think you can make a convincing case that they did so (or even tried).

    “Now, one could make the case that the Taliban are to be held at fault for fighting in garb that other Afghans could plainly recognise, but the newly-arrived Americans couldn’t. Or that the Taliban were at fault for not realising that civil wars and wars against invading forces must be fought differently. Those would be pretty pathetic cases, of course.”

    They certainly can be held at fault for not wearing “a distinctive sign,” especially when combined with other acts such as placing military equipment in proximity to religious sites or in Red Cross warehouses. (Or hiding amongst civilians, not carrying weapons openly, perfidious use of white flags, etc.) Taken as a whole, these systematic violations undermine their claim to POW status.

    “Which means, Cecil, that your discussion of the other categories in Article 4, with respect to Taliban militia, seems somewhat moot. And this isn’t just my opinion, but the opinion of plenty of people in the international law business.”

    As with most debates, there are plenty of well-qualified people on both sides. It’s also worth pointing out that the requirements in Article 4 are specified for “other militias” not because they have a higher standard, but because it’s assumed that regulars would meet them as a matter of course. (And the fact that the Taliban obviously doesn’t meet them tends to discredit the attempt to characterize them as regulars.)

  50. Cecil Turner says:

    Dem,

    On article 5 of Fourth Geneva, I think a case could be made that it recognizes exceptions for state security, and that in a novel situation those exceptions might apply to some other provisions as well. It’d be a more convincing argument in the case of international terrorists who’d traveled widely, even if they weren’t captured in the territory of the detaining power. (Not sure it’d be a very strong case, though.) But the communication bit is the most pertinent, and talks directly to the “disappeared” CIA detainees (which seems to be a hot button issue).

    Thanks for the discussion, I’ve learned from it as well. Cheers.

    —–

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