Yoo, Unrepentant

Prof. John Yoo published an op-ed in the LA Times today entitled With 'All Necessary and Appropriate Force'. As Prof. Yoo worked in the Justice Dept. During 2001-03, and by all accounts had a major hand in the drafting of Justice Dept. memos relating to the rules applying to the treatment of al Qaeda and other persons labeled by the administration as non-persons enemy combatants, his comments deserve careful attention.

Official Washington has been struck by a paroxysm of leaking. It involves classified memos analyzing how the Geneva Convention, the 1994 Torture Convention and a federal law banning torture apply to captured Al Qaeda and Taliban fighters. Critics suggest that the Bush administration sought to undermine or evade these laws. Sen. Dianne Feinstein (D-Calif.) claimed this week that the analyses appeared “to be an effort to redefine torture and narrow prohibitions against it.”

Yes, that's more or less what it looked like all right. Or, as one pithy letter-writer to the Washington Post put it, “How is it that the Defense Department, the Justice Department, and the White House counsel's office were all writing lengthy and detailed memos on the laws against torture, how to get around the laws against torture, and the president's alleged authority to 'set aside' the laws against torture, and yet nobody had any intention of torturing anybody?”

This is mistaken. As a matter of policy, our nation has established a standard of treatment for captured terrorists. In February 2002, President Bush declared that the detainees held at Guantanamo Bay, Cuba, would be treated “humanely and, to the extent appropriate and consistent with military necessity, consistent with the principles” of the Geneva Convention. Detainees receive shelter, food, clothing, healthcare and the right to worship.

Ok, we're already at the first disingenuous loophole: “a standard of treatment” tells us nothing about what sort of standard. “Kill them all” is a standard. As for the promise of humane treatment, what is that worth when it's qualified by “to the extent appropriate and consistent with military necessity”?

This policy is more generous than required. The Geneva Convention does not apply to the war on terrorism.

Actually, this statement is dangerously false. The Geneva Convention does not apply to terrorists on our shores–but the Bill of Rights does. As regards foreign nationals in foreign countries where we are conducting military operations, the Geneva Conventions clearly contemplate a dichotomous world: there are foreign uniformed troops, who get POW status if caught, and there are foreign civilians, who do not, but instead benefit from certain limited protections for civilians. Irregulars who take up arms can be treated as criminals, can be tried, can be shot if there is a death penalty. POWs can't be tried, and are entitled to a set standard of treatment that in many countries exceeds what civilian prisoners would get. Furthermore the Geneva convention system provides for a system by which military captors must hold a hearing to determine the status of a captured combatant before determining that they are not entitled to POW status. We've failed to do this in Afghanistan and Iraq, although we did manage somehow to do it in the first Iraq war.

It applies only to conflicts between its signatory nations. Al Qaeda is not a nation; it has not signed the convention; it shows no desire to obey the rules. Its very purpose — inflicting civilian casualties through surprise attack — violates the core principle of laws of war to spare innocent civilians and limit fighting to armed forces. Although the convention applies to the Afghanistan conflict, the Taliban militia lost its right to prisoner-of-war status because it did not wear uniforms, did not operate under responsible commanders and systematically violated the laws of war.

By joining Al Qaeda or the Taliban, much less by being accused of joining by Mr. Yoo and others, persons forfeit neither their citizenship nor their humanity. Al Qaeda is not a country. It cannot sign the Geneva conventions. But its fighters often are citizens of signatory countries, or are fighting on behalf of signatory countries. The idea that the US can unilaterally say that accused Al Qaeda and Taliban members are, by virtue of the accusation, removed from the Geneva conventions is dangerous nonsense, and an ugly precedent that will surely come back to haunt us. To the extent that particular fighters violated their rights to POW status by, for example, not wearing uniforms, our obligation under those same conventions is to treat them as POWs until we give them a hearing.

It is true that the definition of torture in the memos is narrow, but that follows the choice of Congress. When the Senate approved the international Torture Convention, it defined torture as an act “specifically intended to inflict severe physical or mental pain or suffering.” It defined mental pain or suffering as “prolonged mental harm” caused by threats of physical harm or death to a detainee or a third person, the administration of mind-altering drugs or other procedures “calculated to disrupt profoundly the senses or the personality.” Congress adopted that narrow definition in the 1994 law against torture committed abroad, but it refused to implement another prohibition in the convention — against “cruel, inhuman or degrading treatment or punishment” — because it was thought to be vague and undefined.

Physical and mental abuse is clearly illegal. But would limiting a captured terrorist to six hours' sleep, isolating him, interrogating him for several hours or requiring him to do physical labor constitute “severe physical or mental pain or suffering”? Federal law commands that Al Qaeda and Taliban operatives not be tortured, and the president has ordered that they be treated humanely, but the U.S. is not required to treat captured terrorists as if they were guests at a hotel or suspects held at an American police station.

Another disingenuous move. Neither six hours sleep nor “several hours” of interrogation are illegal acts. But that's not what we're talking about. We're talking about scaring people with dogs, about contests to see how many detainees could be so terrified they peed on themselves. We're talking about 16 hours of continuous interrogation, and suicide attempts. We're talking about telling people they were about to be killed. We're talking about simulating telephone conversations in which detainees were told their families were being held on the other end of the line and would be harmed if the detainee didn't talk. We're talking about not jjust threatening but abusing kids to make parents talk. We're talking about raping women and children of both sexes. We're talking about atrocities.

Treating “captured terrorists as if they were guests at a hotel”? The word “offensive” is really too mild for this sort of argumentation.

Finally, critics allege that the administration wants to evade these laws by relying on the president's commander-in-chief power. But the 1994 statute isn't being evaded, because the president's policy is to treat the detainees humanely.

WHOOPS! What happened to “to the extent appropriate and consistent with military necessity”?

Besides, that statute does not explicitly regulate the president or the military. General criminal laws are usually not interpreted to apply to either, because otherwise they could interfere with the president's constitutional responsibility to manage wartime operations. If laws against murder or property destruction applied to the military in wartime, for instance, it could not engage in the violence that is a necessary part of war.

Non-sequitur. Straw man. No one has suggested that the statute prevents military operations. Just military torture. And since the statute is part of our observance of the Geneva Conventions, it's hardly odd to read it to apply to the military – since that's to whom the Geneva Conventions apply.

But suppose Congress did specifically intend to restrict the president's authority to interrogate captured terrorists.

Ok, back to reality.

As commander in chief, the president still bears the responsibility to wage war. To this day, presidents from both political parties have refused to acknowledge the legality of the War Powers Resolution, which requires congressional approval for hostilities of more than 60 days. (President Clinton ignored it during Kosovo.) And in the war on terrorism, Congress has authorized the president to use “all necessary and appropriate force.”

Non-sequitur again. No President has ever previously suggested that the Torture Statute was either unconstitutional or didn't apply in wartime.

By exploring the boundaries of what is lawful, the administration's analyses identified how a decision maker could act in an extraordinary situation. For example, suppose that the United States captures a high-level Al Qaeda leader who knows the location of a nuclear weapon in an American city. Congress should not prevent the president from taking necessary measures to elicit its location, just as it should not prohibit him from making other strategic or tactical choices in war. In hearings this week, Sen. Charles E. Schumer (D-N.Y.) recognized that “very few people in this room or in America … would say that torture should never, ever be used, particularly if thousands of lives are at stake.”

This is so wrong on two levels. First off, not one of the memos at issue is about the rare hypothetical 'terrorist known to have an a-bomb in NY' (TABNY) scenario. Rather, they are about the care and torture of all so-called 'enemy combatants'. Not a single one of these people has ever been alleged to have WMDs in the US. It may be that many people got tortured for denying knowledge of the existence of WMDs in Iraq, but the evidence points rather strongly in the direction that these weapons never took the trouble to exist.

Prof. Yoo's resolution of the TABNY scenario is wrong on its own terms too, because it legitimates a torture regime that, even judged by its own starkly utilitarian morality, will inevitably err on the side of excessive torture . Explaining why that is is a little complicated, so I'm going to defer that to another posting that I'll put up no later than Monday.

Ultimately, the administration's policy is consistent with the law.

“Consistent with the law” because (although Prof. Yoo has soft-pedaled it in this op-ed) the memo says that the Constitution allows the President to do what he wants if he justifies it by miliary necessity.

If the American people disagree with that policy, they have options: Congress can change the law, or the electorate can change the administration.

True. But you left one out: the courts can find that your interpretation sounds in Nuremburg.

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49 Responses to Yoo, Unrepentant

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  2. Evelyn Blaine says:

    I just finished reading the four parts of the Yoo memo from January. In some ways, it’s scarier than the “working group memo”, even though torture is never discussed. The working group memo was appalling but also, in many ways, amateurish; the Yoo memo is more polished, better written, and at least bothers to cover its ludicrous conclusions with a little hand-waving toward possible objections – the former thrusts directly against the rule of law and puts its unbounded claims for presidential power right up front; the latter, cold and bloodless, tries to suffocate the international and domestic legal order bit by bit. It’s clearly the work of a clever but completely unprincipled legal mind – it reads, to pick up on a comparison made elsewhere, like a defense of some Fortune 500 corporation’s grossly malfeasant acts produced by a white-shoe law firm, whereas the “working group memo” reads like a brief for a two-bit polluter caught red-handed written up by a local Federalist Society aficionado — zealous and unrestrained but in a little over his head.

  3. peter jung says:

    So far as I’m aware, the 660 GITMO detainees from 42 different countries weren’t even conclusively guilty of anything. They were rounded up and shipped to Cuba by the US military without any sort of due process. Given their ambiguous status, it would seem a high and mighty democracy such as ours could at least afford them the benefit of the doubt and refrain from any sort of physical or psychological coercion.

    How in the world did John Yoo manage to graduate Harvard summa cum laude? Are standards slipping at that venerable institution? I’d like to see him stripped bareass naked and parachuted into the middle of Fallujah, Iraq– he could share his enlightened views on torture with the nice folks there….

  4. Great post, and I especially liked the conclusion.

    My own reaction when I read Yoo’s dishonest goo was:

    “Oh, like it would EVEN BE POSSIBLE to write a law that you fascist criminals would actually feel obliged to OBEY??? But you’re forgetting something Mr. Yoo: we can put every last one of you jerks in prison for your crimes.”

    And there’s no statute of limitations or immunity for these crimes.

    Speaking of Harvard’s standards, and the Bar’s come to think of it…

    Shouldn’t the Harvard Regents AND the Bar be revoking the credentials of these folks, like, yesterday if not sooner??

  5. Evelyn Blaine says:

    For those who are interested, there’s a long article partially about Yoo’s views here:
    D. Jinks & D. Schloss, “Is the President Bound by he Geneva Convention?”

    http://www.law.uchicago.edu/academics/publiclaw/resources/61-Jinks.pdf (see pp. 33 et seq.)

    I’m deeply conflicted about the question of critiques like this: part of me feels that one should make detailed, scholarly, point-by-point refutations of the claims in the torture memo and the Geneva memo, if only for the record, and the other part feels that it’s pointless and degrading to *argue* points of law with the likes of John Yoo and Mary Walker … just as it’s a waste of time to
    argue with flat-earthers or biblical inerrantists. The appropriate response is not to take their pseudo-arguments seriously, but simply to read them as ideological symptoms, and talk about the motivations behind them. Scholarly replies risk bringing the positions of the extremists into the mainstream and making it seem like “just another” academic dispute, where “reasonable people can disagree, there’s surely a middlegroud”, and all other such cliches apply, etc., etc. Any thoughts about this?

  6. JC says:

    I just recently came across this site. It is wonderful to have a clear analysis of these torture memos.

    Rather than trying to contrive support for this approach (see Yoo’s LA Times piece), the White House should be explicitly rejecting this group’s analysis. And given the repugnent nature of the assault on human decency, why hasn’t Bush expressed his disgust and fired the authors?

    Even if a draft, or just kicking around ideas — the very nature of the premise, getting around the law, finding ways to permit torture, etc., is simply too repugnent to go unanswered by Bush.

  7. JC says:

    I should have added in response to EB at 12:09, I think it essential to refute the Bush legal analysis. This website is doing a great service.

    People such as Prof. Yoo have been given platforms through their various publications, including mainstream outlets such as the LA Times. They have also been given access to the highest levels of our government. To the extent these legal arguments are repugnent to the Constitution, the rule of law, common human decency, etc., everyone should speak out. I just wish more law professors would scream about this assault on the Constitution. Ditto for the bar associations.

    I would love to see Prof. Froomkin’s rebuttal in the LA Times.

  8. DNS says:

    An interesting thread running through most of the arguments put forward by the pro-torture crowd and by people like Sen. Inhofe (remember his comment about being more outraged by the outrage than by the photos or torture?) is the assumption that the people we’re talking about — the people being subjected to these practices — are *definitely* Al Qaeda or Taliban. Even in the midst of a detailed, thoughtful (though repugnant) analysis like Prof. Yoo’s, one can see that these apologists take it as a given that the people that have been captured and detained are definitely enemy combatants. Then the analysis proceeds to examine whether certain laws and protections extend to them.

    But, as has been pointed out many, many times, either (a) no tribunal has been convened, as required under the Geneva Conventions, to determine whether they are in fact POWs or enemy combatants (or merely civilians caught up in the net) or (b) even the military itself (e.g. MI in Iraq, quoted by the Red Cross) has conceded that up to 90% of detainees were guilty of nothing at all.

    So, beneath the arguments defending their interpretations of law, we can discern perhaps a more troubling element of this fascistic thinking: “Of course they’re guilty — they were detained!”

    It’s exactly the same kind of thinking that still pervades our society with respect to law enforcement: a large proportion of the civilian population simply trust the police and the DAs Offices to arrest, prosecute and convict only the guilty. (“He must have done something wrong or else he wouldn’t have been arrested!”) Our long sad history of police brutality, racial profiling, fabrication of evidence, DA corruption and malfeasance, police perjury, etc., are all ignored, suppressed, shouted down. And this is exactly the kind of thinking that underlies Prof. Yoo’s analysis: “What we’re talking about here are members Al Qaeda and Taliban — therefore the law says…” Those of us who have developed an appropriate level of suspicion about Authority immediately exclaim, “But we don’t know that!”

    Isn’t it ironic that the people currently arguing most strongly in defense of the White House, the interrogation procedures, etc. are the very same people who argue — with respect to domestic policy — that the government can’t be trusted with your money, that the government is wasteful, that the government is inept? Oh — wait a second — that’s when it comes to your MONEY. OK, when it comes to civil liberties, human rights, human decency, and the War on Terrror, the government — the police, the FBI, the CIA, and DOD — are never wrong. OK. Got it.

  9. Invigilator says:

    Torture should always be illegal. The hypothetical terrorist-with-a-nuke-about-to go-off case is so aberrant that it does not provide a foundation for law — it requires those in charge of the case to break the law and take the consequences — which, if they succeeded in stopping such a bomb, would presumably be mild. Trying to find legal excuses for torture is not just a crime, it’s a mistake.

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  11. MP says:

    Where exactly is this “clear analysis” JC speaks of in his post? I guess “clear analysis” means “agrees with my opinion” on this board. “Torture should always be illegal.” is more or less the same as the other posts above: A mere personal opinion on policy with no supporting arguments. No analysis on the varying definitions of torture. No analysis of the information and lives saved as a result of interrogations. No analysis on the (supposed) better life for all of us if torture (whatever that word means) were banned. I wonder which of the HLS bashers are HLS graduates?

  12. Phill says:

    No, not Michael in the LA Times, lets find one of the Neuremberg prosecutors, there must be some still left alive.

    It does not take a lawyer to see through the specious arguments of these appauling people. The meaning of a word is frequently re-interpreted in the middle of a sentence to allow the benefit of both sides of the argument.

    So the “Geneva Convention” is claimed not to apply even though the Geneva Convention on Torture has absolutely no exceptions whatsoever. It does not matter whether there is a war or not, whether the victims are POWs, civilians or one of the fictitious categories that the Bush administration has halucinated.

    The administration are not trying to persuade here, they are merely trying to give a justification for those people who want to believe it.

    At this point fewer people want to believe Bush. When people like Brooks and O’Rielly have a problem being an appologist for Bush then Bush has a very serious problem. At this point Bush is down to Limbaugh, Saffire, Novak and Mathews.

  13. My comment, from http://meredicta.blogspot.com :

    Proponents of torture are fond of raising the nightmare scenario of a terrorist who we know has knowledge of a nuclear bomb that is about to kill millions of innocent persons. Surely, they say, torture must be justified in such circumstances.

    There’s a simple response to this position: If there is a criminal prosecution of the government officials who order or commit torture in such circumstances, then they can raise the defense of necessity. They can show, in their defense, that a grave harm was imminent, and that there was no other way to avoid that harm. If they are right, then I seriously doubt many American juries or courts would convict them. Thus, there is no need to declare in advance that torture should be legal. Such a policy virtually guarantees that it will be used even when there is no grave, imminent harm we are seeking to avoid.

    This is the solution arrived at by the Supreme Court of Israel. There’s a link to their opinion on my blog.

  14. Thomas says:

    The Good Professor can’t read. That’s the things that stands out in the latest. The Good Professor who can’t read dares to criticize someone else in the profession who can not only read but think. That’s almost more than I can bear.

    Yoo wrote “In February 2002, President Bush declared that the detainees held at Guantanamo Bay, Cuba, would be treated “humanely and, to the extent appropriate and consistent with military necessity, consistent with the principles” of the Geneva Convention.” In that sentence, the clause reading “to the extent appropriate and consistent with military necessity” limits “‘consistent with the principles’ of the Geneva Convention.” It doesn’t refer in any way to “humanely.” The portions of this post which suggest that it does are based on a complete lack of reading comprehension. That’s inexcusable for a high schooler. That the Good Professor would make such a mistake suggests he’s a complete idiot or that he’s incredibly dishonest. I’m not sure which choice is more charitable.

    The rest of the post is, unfortunately, more of the same, if less obviously so.

  15. Michael says:

    In a post otherwise marred by childish insult, Thomas writes,

    Yoo wrote “In February 2002, President Bush declared that the detainees held at Guantanamo Bay, Cuba, would be treated “humanely and, to the extent appropriate and consistent with military necessity, consistent with the principles” of the Geneva Convention.” In that sentence, the clause reading “to the extent appropriate and consistent with military necessity” limits “‘consistent with the principles’ of the Geneva Convention.” It doesn’t refer in any way to “humanely.”

    I agree that Yoo’s account of Bush’s order standing on its own most naturally leads to the reading in which “humanely” is unaffected by the limiting clause which follows. But we need to read this in the context of what “humanely” has actually meant in Guantanamo. And what it has meant is a regime of pressure, alleged beatings and weird psychological assaults, and more than 30 suicide attempts, and powerful condemnation by the Red Cross not just for technical violations of the Geneva Conventions but for inhumane treatment of detainees (“Cassard replied that those methods and the lengths of interrogations were coercive and having a ‘cumulative effect’ on the mental health of the detainees. Cassard also said that the steel cages, coupled with the maximum-security nature of the facility and the isolation techniques, constituted harsh treatment. He said interrogators were putting detainees into isolation holds for 30 days at a time for refusing to cooperate, an apparent violation of international law”; the Red Cross also objected to interrogators at the facility having access to the medical files of the detainees).

    Unless you believe that the interrogators in Guantanamo are violating the President’s order, it either did not exist or more likely is being followed in the manner it was intended: the invocation of humanity is window dressing and that the part which matters is the Administration’s view of “military necessity”. Yoo (and you?) should know this.

  16. Jassalasca Jape says:

    Although Michael Froomkin has already weighed in with a direct response, I would like to offer my own comment on Thomas 12:56. This will be slightly tedious at the outset, but it actually does lead somewhere interesting.

    John Yoo had written:

    Finally, critics allege that the administration wants to evade these laws by relying on the president’s commander-in-chief power. But the 1994 statute isn’t being evaded, because the president’s policy is to treat the detainees humanely.

    Michael Froomkin comments:

    WHOOPS! What happened to “to the extent appropriate and consistent with military necessity”?

    The reference is to the use of this phrase in a February 2002 statement issued by the Bush administration, quoted in part by John Yoo. The sentence in question reads in its entirety:

    The United States is treating and will continue to treat all of the individuals detained at Guantanamo humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949.

    Thomas comments:

    [T]he clause reading “to the extent appropriate and consistent with military necessity” limits “‘consistent with the principles’ of the Geneva Convention.” It doesn’t refer in any way to “humanely.” The portions of this post which suggest that it does are based on a complete lack of reading comprehension.

    The core of this excruciatingly narrow and ennervating grammatical point is that there is a category of action, justified on account of military necessity, which is not consistent with the Third Geneva Convention of 1949, but which is nonetheless humane. This must mean that the boundaries set down in the GC, however read, are more confining than those imposed by the standard of “humane treatment”.

    Of course, the reference to which Thomas objects refers to the Torture Statute, rather than the Third Geneva Convention. The two are related – the Torture Statute is meant to reinforce the Convention – but they are not the same document. What is John Yoo’s position on the Torture Statute and its relationship to “humane” treatment? In an interview on PBS, John Yoo made the following point:

    [I]t’s important to realize what the Senate did is not implement the other part of the torture Convention, which was prohibition on inhumane treatment.

    Uh-oh.

    John Yoo’s position here is that “humane treatment” is a more restrictive standard, which is not imposed under the Torture Statute – and he places the blame on Congress. The orginal failure to parse correctly was John Yoo’s own, in reversing the logic of the administration’s statement – a self-serving reversal that he as adopted consistently, in conflict with the published record. Given that John Yoo himself has adopted what might be kindly described as a broad-brush approach to argumentation, defensive nit-picking by small champions doesn’t cut much ice.

    Thanks for the posting, Thomas. It’s been a revealing journey.

  17. Thomas says:

    Michael, I’m confused: is that a concession that you misread the Yoo article, or misstated the Yoo argument in your post? Your insistence that we need to read this “in context” makes it unclear. If you had wanted to supply “context” in the original post, wouldn’t that best be done not by misstating Yoo’s argument but by actually supplying the “context” you think important?

  18. Cecil Turner says:

    Michael,

    Are you claiming Al Qaeda members detained in Afghanistan are entitled to be treated as prisoners of war under the Geneva Conventions? (And if so, what category would they fall under?) Or that a non-citizen Al Qaeda member detained in the US would be entitled to due process under the US Bill of Rights? (And why would that be different from a German commando during WWII?)

  19. Geek, Esq. says:

    Congratulations, Professor Froomkin. You’ve drawn the attention of a stalker/troll. Your star is clearly rising.

    Regarding the applicability of the Geneva Conventions (the “GC’s”), I am puzzled by a couple of things. First, the failure to engage in the process of conducting hearings to formally declare the AQ fighters (more on the Taliban in a bit) as outside the GC’s through a hearing conducted by JAG’s. If the case that they are not POW’s is so damn ironclad, why not go through the process? Why make such a counterproductive display of contempt for the GC’s?

    Secondly, I don’t think it’s at all clear that the Taliban prisoners are not POW’s. Don’t get me wrong–they’re hateful barbarians. But, it seems that they would qualify under either Article 4(2) or 4(6). While the Taliban violated virtually every other rule of civilization, there is a serious argument to be made that they are entitled to POW status.

  20. citizen k says:

    As for Thomas, your confusion is purely moral. The US government, in our name has engaged in grotesque torture and a worldwide prison system that the crafters of the US constitution would have called despotism and tyranny at its most vile. There is a choice. You can come out on the side of Himmler and the “night and fog” justifications of evil, or you can come down on the side of humanity and simple morality. There is, however, no way to parse away the evil of Yoo’s argument or what was done in our name to real living human beings. To argue that it is possible to be “humane” while violating the Geneva convention requirements due to “military necessity” is to enlist on the side of Himmler and to label yourself as a despicable worm.

  21. Cecil Turner says:

    Geek (no offense),
    “But, it seems that they would qualify under either Article 4(2) or 4(6).”

    Under 4(2), they’d have to meet the four conditions:
    “(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. “

    And under 4(6), they’d have had to “spontaneously take up arms to resist the invading forces,” and again ” carry arms openly and respect the laws and customs of war.”

    I’m not sure how the most charitable interpretation of either would include the Taliban.

  22. Geek, Esq. says:

    Cecil–

    I know that the GC’s were applied to the Viet Cong, to whom the Taliban bear a striking resemblance, in terms of operational protocols.

    Which “laws and customs of war” did the Taliban not follow? I know that if you were a woman who flashed her chin or ankle, they felt free to commit all sorts of crimes. But, from what I’ve seen, they did wear a uniform (the black turban was their identifier), they did carry weapons openly (hell they did that before 9/11), and they did have commanders and some (though very rough) organizational structure.

    I’m not saying it’s a slam dunk–I can see a tribunal making a good faith finding that they weren’t entitled to POW status. I’m not even going to argue that they actually are entitled to such protection. But, it’s close enough to warrant a hearing as called for under the convention.

  23. Cecil Turner says:

    Geek,

    Tribunals are normally convened for individuals–I know of no precedent for using one to determine a principle. So I’m not sure about the idea of holding one to make a blanket ruling on all Taliban members.

    As to Taliban law of war infractions, hiding among civilians, perfidious surrenders, etc. were common in Afghanistan. The black turban thing may have been a distinctive mark while conducting police functions, but AFAIK they didn’t use it to distinguish combatants from civilians. Nor did they carry arms openly when attacking. I’d agree the case for the Taliban is closer than for Al Qaeda members, but still, taken as a whole, it doesn’t appear to be terribly close.

    Strict adherence to the GCs provides incentive for the enemy to do the same. If an enemy flouts them (e.g., hides his fighters among civilians, takes hostages, aims his military attacks against civilian targets), it’s reasonable to provide a disincentive. If not, we effectively sanction the enemy’s decision not to abide by them. Reprisals against individuals are forbidden, but refusing to provide combatant rights for those who don’t qualify is certainly proper.

  24. Geek, Esq. says:

    Cecil:

    Your comments are well-taken, but we aren’t detaining principles–we are detaining individuals.

    I think that the precedent of the Viet Cong alone supports such tribunals–the VC did all of the things you mentioned, but were accorded GC protection. To go from saying that such resistance groups (and let’s be honest, hiding among civilians is something that almost all resistance groups do to a certain extent) are entitled to POW status to saying it’s not even close enough to warrant a debate suggests an arbitrary, results-oriented approach rather than a legal one. I say they should have let the JAG’s argue this before a military tribunal, which could make that determination. I’m pretty certain that the military lawyers/judges are more qualified to make this determination than the yahoos who wrote the Torture Memoranda and Bush.

  25. randy says:

    It is tiresome listening to the rights exclusions that are being applied to “suspected” terrorists” and the excuses being used to justify it. Terrorism is no more of a crime than serial murder yet the accused serial murderer is afforded protections to assure that he is not being railroaded or scapegoated or otherwise being used as a tool of political interests. If we are to believe in our system of justice it must be embraced fully and applied wherever it touches our jurisdiction. There are no exclusions to due process or fair and reasonable treatment. It is the main thing that separates us from despots and it is an unassailable core American belief. We should be requiring foreign nations to impose due process rather than using those nations as cover for atrocity. “National Security” has become a black hole into which American values are disappearing.

  26. Cecil Turner says:

    “the VC did all of the things you mentioned, but were accorded GC protection”

    I’m not sure that’s accurate. VC captured in mufti were often dealt with summarily. (The famous scene of the RVN officer shooting the VC in the head springs to mind.) VC operating in the field were generally organized in military units, wore a standard uniform (black fatigues) and weren’t commingled with civilians. And by all reports, interrogations were harsh.

    I also don’t think I’m buying the “arbitrary, results-oriented approach” accusation. A normal military, as discussed in the GCs, is supposed to have uniforms, identity cards, a chain of command, and formal training to its troops on laws of war. The Taliban was running Afghanistan–it wasn’t an irregular resistance group. Even allowing them to try to qualify under 4(2) seems to me a generous interpretation–and there’s little doubt in my mind they still fail to qualify. And if the organization doesn’t qualify, the individuals can’t. Holding thousands of status tribunals makes little sense, nor is it an absolute requirement under Third Geneva.

  27. Romdinstler Jones says:

    “Scholarly replies risk bringing the positions of the extremists into the mainstream and making it seem like “just another” academic dispute, where “reasonable people can disagree, there’s surely a middlegroud”, and all other such cliches apply, etc., etc. Any thoughts about this?”

    But John Yoo is the very definition of an extremist in the mainstream! He served in the Justice Department during the years 2001-2003. We have met the enemy and he is (part of) us.

    And, given that lawyers are obviously quite numerous in our government, Yoo’s views must be disputed in the academic world from which those lawyers come. Professor Froomkin, and others here, seem well suited to that task and I know they’ll continue to prosecute it.

    But of course your concern is that the general public be convinced of the illegal nature of the actions of this administration. I begin to fear that the one thing that will ultimately be required for this task is the release of the details and images of the atrocities committed against children in Iraq. In any case, I agree with you that a mere academic argument will not suffice.

  28. Cecil Turner says:

    Randy,

    Detained enemy combatants, whether they merit POW status or not, aren’t “suspected” of anything. They are detained as a security measure, without trial, by the Executive branch, incident to the conduct of the war. For the duration.

    If you try to apply a criminal due process thought process to POWs, you will at a minimum be chagrined by the fact many people have lost their liberty without committing any offense.

  29. Evelyn Blaine says:

    Why does it make “little sense”? We’re not talking about Article III courts here — only some form of hearing that would 1) establish a clear record of the circumstances of capture, 2) permit the detainee to state facts relevant to his case, and 3) reach a decision on the basis of a clear legal standard. It’s not necessary that the detainee have access to an expansive form of compulsory process. This seems to be the minimum that fundamental principles of equity require; and it could be done most expeditiously. Surely, compared to the inordinate number of man-years spent thus far interrogating and re-interrogating the detainees, it would be a trivial expenditure of time.

    And I would argue that it is an absolute requirement under Geneva III Art. 5 interpreted in any sensible fashion. Clearly, under whatever reading of Geneva III you choose, there will be a determinable fact of the matter about whether someone merits POW status or not — and it is clear that authorities with a vested interest in extracting information from the detainees are not in an appropriately impartial position to adjudicate that fact. Which is why Art. 5 contemplates a “competent tribunal.”

  30. Cecil Turner says:

    Evelyn,

    If the Taliban doesn’t qualify as one of the “categories” listed in Third Geneva (Article 4), then no member can possibly qualify as a POW. In that case, what would you determine at an individual tribunal? (And as a reductio argument, why didn’t we extend that privilege to German prisoners taken in Normandy?) And if a tribunal was an absolute requirement, why the tortured phrasing in Article 5?

    In any event, the Administration would be the convening authority for any military commission. You appear to be envisioning a tribunal that is independent of the Executive, for which there is no precedent I’m aware of.

  31. Evelyn Blaine says:

    Ummm … because the German prisoners taken at Normandy were designated as POWs and thus didn’t have anything to contest? (I don’t think we need to entertain seriously the possibility that some of them might have wanted to claim that they were unlawful combatants and thus deserved fewer rights than they were getting.)

    I don’t mean a tribunal “independent of the executive” in an a constitutional sense; I mean merely separate from operational command authority and reaching its conclusions independently — just like any other court-martial.

  32. Evelyn Blaine says:

    Cecil,

    But in relation to the larger point about the interpretation of Art. 5 of Geneva III; I think your interpretation fails to see the passage in the context of the conventions as a whole. Their general scheme suggests that almost everyone falls in to the category of a lawful combatant (Geneva III) or
    a civilian/protected person (Geneva IV), and only limited and specific subclasses don’t fit this bipartition. If that’s the case, fundamental fairness seems to require that one should be presumed to be either a civilian or a lawful combatant unless evidence appears to the contrary; and that it be a “competent tribunal” that reaches that decison.

  33. Cecil Turner says:

    Evelyn,

    “I don’t think we need to entertain seriously the possibility that some of them might have wanted to claim that they were unlawful combatants and thus deserved fewer rights than they were getting.”

    I think many of them would have liked to claim they were impressed Russians and Poles forced at gunpoint into German foxholes. (And some undoubtedly were.) Should each get a chance to “state facts relevant to his case”? After all, we might have let them go.

    A tribunal is not the same as a court-martial, and is generally convened by the senior military commander in operational control. Not sure what degree of separation you’re looking for, or that it matters all that much, but it’s not likely to be great. (And obviusly I extrapolated your earlier comment beyond its meaning–sorry.)

  34. Cecil Turner says:

    Evelyn,

    “But in relation to the larger point about the interpretation of Art. 5 of Geneva III; I think your interpretation fails to see the passage in the context of the conventions as a whole. Their general scheme suggests that almost everyone falls in to the category of a lawful combatant (Geneva III) or a civilian/protected person (Geneva IV), and only limited and specific subclasses don’t fit this bipartition. “

    The law of war is a system of common law developed over centuries. The concept of those fighting without commission is not new. For example:

    From 1863 “Lieber Code” (Civil War field manual, art 82):
    “Men, or squads of men, who commit hostilities. . . without being part and portion of the organized hostile army, and without sharing continuously in the war . . . are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.”
    http://www.yale.edu/lawweb/avalon/lieber.htm

    From Ex Parte Quirin:
    “. . . an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war . . . “

    The GCs list the categories considered POWs in some detail. Obviously there are those who don’t fit in those categories–and therefore are not entitled to POW status. And as stated earlier, if we treat every organization as lawful–whether they follow the rules or not–we remove any incentive to follow the law of war.

  35. Evelyn Blaine says:

    I really doubt that the US authorities would have let any German soliders go on the basis of the degree of compulsion or non-compulsion involved in their history — nor would they have been under any obligation to do so; it would have been an issue legally irrelevant to their rights under Geneva III. The whole point is that being an unlawful combatant is an exceptional classification — unlike the other two, it is something that needs to be shown. By separation, I mean merely sufficient procedural safeguards to ensure that the decisions are made on the basis of a reasoned consideration of the evidence, not on the whim of the guy with the most stars on his shoulders. The classificatory distinction between a tribunal and a court-martial is of less importance than the substantive question of impartiality — doubtless in history there have been many kangaroo-court-martials which have been irremediably tainted by improper command influence, and many “tribunals” which have reached fair decisions by appropriate means.

  36. Evelyn Blaine says:

    I’m not arguing, at all, that every organization is lawful; the notion of unlawful organizations whose members do not merit POW protection is certainly, as you note, part of Geneva and the common law of war. I’m just stating that in saying that someone is not entitled to POW protection by virtue of the exclusions from Article 4 of Geneva III, one is essentially making a two-part judgment: 1) prisoner X is a member of organization A and 2) organization A behaves in such a way that, under Article 4, its members, if captured, do not merit POW status. And both (1) and (2) are fundamentally questions of the application of law, not questions of strategy, tactics, or politics, just as much as determining whether US soldier Y is guity of desertion, or petty theft, or whatever, under the UCMJ is a question of the application of law and not a question of strategy, tactics, or politics. Thus the proper forum for deciding both (1) and (2) is some form of impartial adjudicative body. (2) doesn’t have to be resolved over and over again; it can be done once, provided it’s done fairly, and other adjudicative bodies can take judicial note of the decision reached; but (1) does need to be resolved, in some way, for every case. That seems to me to be the reasonable rading of Article 5.

  37. Cecil Turner says:

    Evelyn,

    “1) prisoner X is a member of organization A and 2) organization A behaves in such a way that, under Article 4, its members, if captured, do not merit POW status. “

    So every captured soldier is entitled to a hearing to determine if he’s a member of the opposing force? And if not, is the military obligated to release him? Do we take soldiers from front-line units to testify in each case? Sorry, but that’s simply not workable. And even if it were, it rewards the enemy for not complying with laws of war (in this case wearing uniforms)–which is again what we’re trying to prevent.

    On point 2, why would a tribunal be more fair than a determination by a JAG panel and subsequent review? After all, in both cases the decision would be reviewed by appropriate military authorities, and eventually come down to the “whim” of someone.

  38. Evelyn Blaine says:

    To answer the second question first: “determination by a JAG panel and subsequent review” would, provided it were impartial and considered the totality of the evidence, and left behind a permanent record, probably count as a “tribunal” in the sense of Geneva IV art. 5.

    As for the first question: only those captured soldiers whom one is claiming do not merit POW status. And, obviously, if there were such soldiers, the question under review would not be whether they should be let go, but whether they should be held with POW status or held without it.

    You seem to be missing the fundamental distinction: if one is captured in battle by a military force, being held as a POW is not really a “punishment” for something one has done; it’s not something that needs to be judicially justified; it’s just the default status. What does need to be justified is holding someone and NOT giving him POW status.

  39. Cecil Turner says:

    Evelyn,

    “You seem to be missing the fundamental distinction: if one is captured in battle by a military force, being held as a POW is not really a “punishment” for something one has done; it’s not something that needs to be judicially justified; it’s just the default status. What does need to be justified is holding someone and NOT giving him POW status.”

    Neither is being held without POW status “punishment.” I don’t think there’s any doubt a tribunal must be held before punishing an unlawful combatant. The question is whether a status tribunal is necessary before asking more than “name, rank, and serial number.”

    And the requirement from article 5 is doubt whether persons “belong to any of the categories enumerated in Article 4.” They are not entitled to a hearing to determine if they are combatants, nor to determine if they belong to a terrorist organization. If the detainee can’t credibly claim to belong to a combatant organization, he isn’t protected.

  40. Evelyn Blaine says:

    I don’t mean to sound harsh, but it is absolutely ludicrous to claim that being held as an unlawful combatant — particularly under the circumstances that this administration is currently holding people — is not a form of punishment. Aside from execution, what lawful punishment could a tribunal impose that would be worse than the conditions under which the non-POWs are now being held? This is the sort of distinction that one can impose on a situation only by willful blindness to what is substantively at stake. As for your reading of Article 5, the distinction it involves is totally immaterial. If one is a combatant, then one is either a lawful combatant (i.e. one belongs to the Article 4 categories) or an unlawful combatant; the two are disjoint, exhaustive classes. If there is doubt as to whether X is non-P, then there is surely doubt as to whether X is P.

  41. Cecil Turner says:

    Evelyn,
    “Aside from execution, what lawful punishment could a tribunal impose that would be worse than the conditions under which the non-POWs are now being held? “

    Being held is not punishment, but a security measure. And conditions are considerably better than reported historical US POW treatment in either of the Hanoi or Baghdad “Hiltons.”

    “If there is doubt as to whether X is non-P, then there is surely doubt as to whether X is P.”

    In that case, your two-step process (yielding four outcomes) would seem to be invalid. In any event, if the Taliban is not a lawful combatant organization, I fail to what finding a tribunal could make that would provide a status other than “non-POW” for the theoretical Afghan detainee. “Innocent civilian” is not an option–either he belongs to a legitimate combatant organization or not. If no such organization is available, he can’t qualify for POW status.

  42. Evelyn Blaine says:

    Cecil,

    > “Being held is not punishment, but a security measure.”

    It’s doubtless a security measure, but it’s sure as hell also punishment. I really don’t see how one can deny this unless one is so committed to formalism that one is prepared to look at the situation in abstraction from any background notions of basic fairness or any empirical facts about what is actually happening. And if that’s the case, one really should not be spending one’s time trying to interpret international humanitarian law.

    > “And conditions are considerably better than reported historical US POW treatment in either of the Hanoi or Baghdad ‘Hiltons.'”

    This is surely irrelevant.

    One final point (addressed to the forum in general): none of the discussion I’ve seen of this issue anywhere has brought up Protocols I or II. The US hasn’t ratified them, but 146 and 138 states have, respectively, in the 27 years since they were proposed. On that basis, I think a strong argument could be made that the main ideas behind them–if not all of their specifics–have become part of customary international law and are thus binding on the US. There are certainly possible objections to this (mainly that of finding general criteria to determine whether something is part of customary or common law), but I think it’s at least something that one would have to take very seriously in any ull treatment of the subject. Any thoughts?

  43. Evelyn Blaine says:

    Let me direct all who are interested to the following very interesting publication, available on line at the ICRC’s website: Jean Pictet et al., Commentary to Geneva Conventions of Conventions of 12 August 1949, 4 vols.

    The section on Article 4 is here:

    http://www.icrc.org/ihl.nsf/b466ed681ddfcfd241256739003e6368/eca76fa4dae5b32ec12563cd00425040?OpenDocument

    I haven’t had a chance to look at this closely, and probably won’t today, but it seems probably as definitive as one can get without heading to the law library.

  44. Cecil Turner says:

    Evelyn,

    Thanks (likewise to Geek) for the discussion. Our perspectives are perhaps too far apart to find much common ground, but I appreciate your points. I think we’ll have to agree to disagree on the punishment issue (and a couple others).

    “One final point (addressed to the forum in general): none of the discussion I’ve seen of this issue anywhere has brought up Protocols I or II. The US hasn’t ratified them, but 146 and 138 states have, respectively, in the 27 years since they were proposed. “

    My understanding is that one of the main US objections (and impediment to ratification) was the liberalization of combatant status (particularly in Protocol I, articles 44 & 45), in the immediate aftermath of Vietnam. Can’t seem to find any documentation to that effect, though.

    Cheers.

  45. Evelyn Blaine says:

    > Thanks (likewise to Geek) for the discussion. Our perspectives are perhaps too far apart to find
    > much common ground, but I appreciate your points. I think we’ll have to agree to disagree on the
    > punishment issue (and a couple others).

    Likewise. One intelligent adversary is often worth more than a dozen allies in sharpening one’s
    arguments — and I’m sure we would both agree that when the moral stakes are this high, we all
    have a responsibility to try to think as sharply and carefully as possible.

    Cheers.

  46. Henry says:

    Just to beat a drum in the hope of eliciting a response: the Guardian (U.K.) quoted a detainee recently released from Guantanamo as saying that there were videotapes of some encounters between guards and prisoners there. A Lieut. Colonel allegedly confirmed that and Patrick Leahy was quoted as demanding release of these tapes to Congress.

    Was this all a dream? Was this another UK news item gone bad? Or is Alexander Butterfield a commissioned officer now?

  47. It is my understanding that ALL interrogations at Gitmo were videoed, and that the videos have been “secured” at CentCom, but I lack the time right now to dig up a link.

  48. Derek says:

    Yoo is a good man, he wrote a memo as a lawyer, and is not an idiot contrary to popular belief. Because he defended a client as a lawyer, hippies at Berkeley would have him burn at the stake, but praise Presidents like FDR who allowed thousands of Japanese Americans to be interred because he wanted his rich businessmen friends to have their land and businesses. By the way, the Japanese internment was of American citizens, not of illegal combatants who had their hand in September 11 and possibly countless more attempts and successes at terrorism, killing innocents.
    It is hard to believe that such intellegent people can be sheparded by Michael moore and liberal propoganda so easily. If you are one of those people, then reading this will infuriate you, you will tell me how ignorant andstupid I am, and turn a deaf ear.
    Well i have some news for you, go to a rain forest and beat your chest, be ause that thought process is just short of what an ape thinks when he doesnt get what he wants.
    Fight knowledge with thought and knowledge, not ignorance.

  49. Michael says:

    I am closing the comments on this item because it is being hit by large amounts of spam.

    —–

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