War Powers, War Lies: Part 7: Captive Taxonomy

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War Powers, War Lies: A Series

Part 7: Captive Taxonomy

Published in the Maryland Daily Record August 5, 2005

‘Tis expressly against the law of arms; ‘tis as arrant a piece of knavery, mark you now, as can be offert.
Captain Fluellyn in Shakespeare’s Henry V, IV:vii:1-4

            There is, we all understand, something truly new and menacing afoot in this world: a technologically-empowered transnational conspiracy: a movement which takes full advantage of the Internet, the web of international banking, the media, and the sophistication of modern weaponry.  The Islamic Terror Syndicate (a useful name Israeli intelligence gives Al Qaeda and its many cohorts) coolly assesses and uses against us, with barbaric effect, the destructive potential inherent in our transport systems, our utilities, and our urban lifestyles.  If we had not appreciated it earlier, no one could fail to understand its significance when it left its calling card on September 11, 2001.

            In response to this horrifying novelty, the Bush Administration lawyers argued that we in turn needed a “new paradigm” of war-making practice, and a reinterpretation of Presidential war-making powers to make the “new paradigm” possible.  That cure has been worse than the disease.  It makes international outlaws and pariahs of us at a time when we need legitimacy most.  This is a very large subject, and this time we address only one part of it, reinterpretations of the law of war in classifying the Muslim men the Executive has seized from around the globe.  It is not only a matter of how we classify alleged members of the ITS legally – but of who gets to make that classification.

            Throughout the history of the laws of war, the distinction between combatants and non-combatants has always been of fundamental importance.  Captain Fluellyn’s lament quoted above protests the failure of the French to maintain that distinction when, at the Battle of Agincourt in 1415 (according to Shakespeare), they slaughtered mere noncombatant boys in the English supply train behind the lines of combat.  (Spin, it turns out, is nothing new.  The truth, if you care: the English were the ones in that engagement to violate the laws of war, murdering disarmed French POWs to prevent them from taking up arms again.  The slaying of the boys, meanwhile, was probably no more than Shakespeare’s invention to justify the British atrocity — giving Henry V his own “new paradigm” if you like.)[1] Typically, when combatants are captured, they are subject to one set of protections; when noncombatants are captured, they are subject to another.  All captives, however, are subject to protection of some kind.              

            In the modern law of warfare, that protection of captured combatants, also known as POWs, is enshrined in the Geneva Convention relative to the Treatment of Prisoners of War ratified in 1949 commonly known as the Third Geneva Convention.  The United States is a signatory.  Those eligible for its protections include members of uniformed military forces, either regular armies or militias.  The protections include such things as general good treatment during capture, freedom from torture, a determination by a neutral tribunal whether a captive is in fact a combatant, ability to communicate with family, access to the Red Cross, and due process in prosecution for war crimes.  

            Noncombatants, also known as civilians, are protected by the Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949), commonly known as the Fourth Geneva Convention, and these protections include prompt trial on any charges of activity inconsistent with noncombatant status, freedom from torture, freedom from forced relocation, ability to communicate with family, and access to the Red Cross.

            The clear understanding of the conferees who adopted these Conventions was that everyone captured during hostilities is classified either as a combatant or as a civilian.  It is true that not everyone engaged in combat or warlike activities receives combatant protections; persons who operate out of uniform, like spies, persons who come from a country that did not sign the Conventions, and persons who operate in irregular militias, are excluded from the protections of the Third Geneva Convention.  But bearing arms in a manner that falls short of qualifying for Geneva Three protections still leaves one protected by Geneva Four.  If bearing arms in a manner that disqualifies one from Geneva Three protections also violates the law, the Geneva Four civilian protections do not prohibit prosecution; that is why spies can be judicially tried, consistent with Geneva Four.  But even spies, accused or convicted, can claim the benefit of Geneva Four.  All that they are barred from is access to Geneva Three.

            This legal reality did not sit well with the Bush Administration, which deployed its lawyers to nullify, systematically, both POW and civilian protections for anyone thought to be affiliated with the ITS.  And owing to the highly indiscriminate methods by which people were soon swept up in various dragnets around the world in the four years since 9/11, there were a lot of persons the Bush lawyers tried to strip of protection. In their conception, there was daylight between Geneva Three and Geneva Four into which “unlawful combatants” fell.  And in that gap there were no protections, either from forced relocation or from arbitrary, endless detention or from error in deeming them outside the Geneva protections, or, as will be discussed next time, from conduct tantamount to torture.

            The beauty of this conception depended in part upon the power of a nation in wartime to detain hostile combatants.  Because (as the real-life Henry V realized) there is always the risk that a POW will fight you another day if set free, international law has always recognized that POWs can be forcibly relocated and detained throughout hostilities to prevent this.  In the old days, when wars were declared and their endings marked by treaties binding all parties, all wars came to an end, and hence all POWs could look forward to release.  In the present “war,” where no one speaks authoritatively for our adversaries and hence no one can bind them, no treaty can mark its end; hence the “war” will end only when Bush or his successor so states.  Given the unlikelihood of this happening in our lifetimes, being a captured combatant not unlikely becomes a life sentence. 

            Under Geneva Four, to detain forever someone not deemed a POW, the capturing power would have to try the captive under criminal laws.  But “unlawful combatants” unable to appeal to Geneva Four get whatever process George Bush says they do.  The Bush lawyers provided for military commissions to “try” the alleged ITS captives: Executive branch officials reviewable only by Executive Branch Officials using rules which were a mockery of due process even under military protocols – when and if they chose.

            The Bush lawyers have supplemented their legal novelties of “unlawful combatant” and ad hoc military commissions with the nervy claim of a Presidential war power to prohibit all judicial review of their application of this concept.

            The development of the Bush doctrine of unreviewable, Geneva-less detention was fleshed out in a collection of memos among White House lawyers.  These memos, among White House Counsel Alberto Gonzales, John Yoo and Jay Bybee of the Office of Legal Counsel, Attorney General John Ashcroft, and State Department Counsel William H. Taft IV, generated between 9/11 and February 7, 2002, have been widely reprinted.[2]  Selections are appended to at least three trade books on the mass detainment and torture, and the documents are widely available on the Web.  The reason for the wide dissemination is clear: the bloodless analytical way in which these lawyers are justifying an outrage is horrifying.  You can’t look away.  The fact that the victims of this outrage may have been involved in perpetrating outrages themselves obviously does not justify the legal abomination being created, nor detract from the sick fascination of the enterprise.

            The authors fully understand that what they are proposing may be viewed as criminal under international and domestic law.  On January 25, 2002, for instance, Gonzales recommends that Bush make a finding that Geneva does not apply to the Taliban, because that finding “substantially reduces the threat of domestic criminal prosecution under the War Crimes Act.”  And State Department counsel William H. Taft, IV, sends Gonzales a memo on February 2, 2002 which comments: “Agreement by all lawyers that the War Crimes Act does not apply to our conduct means that the risk of prosecution under that statute is negligible.”  Which is susceptible of being translated If we all tell the same lie loudly enough and with a straight enough face, we’ll get away with it.

            Over Colin Powell’s objections, Bush by memo of February 7, 2002, signed on to the recommendations of his lawyers.  And the game was on.

            The game, as we now know, included rounding up Muslim men from all over the world and herding them into detention centers.  It offended Vice President Cheney when Amnesty International in its May 2005 Annual Report compared the centers to the Gulag system, so let’s not do that.  What we can agree on is that the U.S. detention centers, at Guantanamo, at Abu Ghraib, at Bagram Air Base, at U.S.-based military brigs, and reportedly in obscurer locations, feature imprisonment far from home, denial of contact with relatives, counsel, the outside world, limited contact with the Red Cross (or Red Crescent), interrogation incorporating what most of the world recognizes as torture, and little meaningful adjudication and review.  Walks and talks and squawks a bit like a Gulag, but hey, let’s not offend Cheney, an objective man who would certainly acknowledge an apposite comparison were one offered.

            The misery that prevails in this, er, non-Gulag has been well detailed in many places including the various official military reports that have emerged from Guantanamo and Abu Ghraib, in Guantanamo translator’s Erik Saar’s 2005 book, Inside the Wire, in Seymour Hersh’s 2004 book, Chain of Command, in the reportage of Jane Mayer in the New Yorker.  The alternative effects of our prison camps on the detainees seem to consist either of making militants where none existed before, or sheer soul-rot.  Defenders of the, er, system say that we should not be apologetic for sacrificing the physical and mental well-being of potentially innocent people for our own security.  But the notion that having been attacked means you never have to say you’re sorry pales against what most of the translators Erik Saar worked with saw was obvious: that many if not most of the detainees at Guantanamo were neither terrorists nor sources of useful intelligence nor in fact being interrogated much.  They were simply being allowed to rot because no one wanted to face the political questions that would be raised if they were released.[3]  Secretary of Defense Rumsfeld called them “the worst of the worst” without having tried them – and he was the last level of appeal from any tribunal that might ultimately test the truth of that proposition.

            Eventually, despite the heroic efforts of the Administration to prevent intervention of independent lawyers and courts on behalf of the condemned – uh, detained, the courts were invoked.  In two June 28, 2004 decisions, Hamdi v. Rumsfeld, and Rasul v. Bush, the Supreme Court upheld the availability of habeas corpus to detainees at Guantanamo and at the Charleston, S.C. naval brig.  Michael Ratner of the Center for Constitutional Rights, a lawyer for the Rasul petitioners, observed of the mere grant of cert that: “The administration saw this decision – even to review their position that no court had jurisdiction – as a slap in the face.  High officials were really shocked by the notion that the Supreme Court could review, and perhaps prohibit, decisions that the president, the commander in chief of the war on terrorism, was making.  They believe that the president can do whatever he wants in that war, and that no court in the world can tell him otherwise.”[4]

            Just what the courts are really prepared to tell the President remains to be seen.  Hamdi and Rasul did not directly come to grips with the central taxonomy issue: the Administration’s contention that “unlawful combatants” may be detained without Geneva protections (or Constitutional due process, court martial procedure, or international customary law).  Rasul did eliminate a secondary taxonomy contention: the view that Guantanamo, being subject to some vestigial Cuban sovereignty, is not U.S. soil and thus a place where the Government can detain persons without access to habeas corpus.  Rasul and Hamdi do hold that meaningful and judicially reviewable tribunals must determine “enemy combatant” status, and this, if fully implemented, takes away some of the reason for and effect of the Bush lawyers’ efforts to open daylight between Geneva Three and Geneva Four.  Moreover, they strongly hint that the detainees have constitutional due process rights.  If the net effect is that the detainees can obtain meaningful and neutral hearings on their claims not to be enemy combatants, the “unlawful combatant” taxonomy will lose much relevance to detention — at least going forward, although most of the detainess will have lost years of their lives before that.  But the proof is in the pudding, or here, in the remand.

            In light of this ruling, the Pentagon revised its rules for the tribunals, beginning to make them resemble more impartial vehicles of due process, and the litigation concerning them was concentrated in the District Court for the District of Columbia.  Skirmishing has been going on there.  During this phase, the Government has been trying to moot out many of the cases.  Some detainees have been released.  Tribunals have been held for all Guantanamo detainees and determined that the rest are all, with one or two exceptions, enemy combatants.  And on March 11, 2005, the New York Times reported that Donald Rumsfeld had hatched a plan to transfer half the detainees to prisons in Saudi Arabia, Afghanistan and Yemen.  A series of preliminary injunctions stopped some but not all of that.  And on July 15 of this year, one panel of the D.C. Circuit upheld the Bush doctrine of Geneva-less, and separation-of-powers-less standards for the Guantanamo commissions.  A cert petition is promised.  The story of this effort to expand Presidential war powers clearly has many more twists and turns in the immediate future.

            One is the struggle with the International Committee of the Red Cross.  The ICRC, tasked by the Geneva Conventions as the primary expositor and protector of international humanitarian law, has, for some years before 9/11 or the U.S. response, been engaged in creating a restatement of customary international humanitarian law.  The ICRC takes the stance that customary laws are binding on all nations regardless of whether they sign treaties or not.  The two-volume restatement, Study on Customary International Humanitarian Law, came out this March.  Its161 Rules would absolutely foreclose the approach taken by the Bush lawyers.  Rule 4 defines “armed forces” in a way that may be consistent with the Bush approach but Rule 5 categorically states: “Civilians are persons who are not members of the armed forces.”  No third category.  It can be small surprise that on April 11, two lawyers from previous Republican Justice Departments wrote in the Wall Street Journal that the Study was anti-U.S. advocacy, and that the U.S. should cut off funding to the ICRC, presumably on the well-known principle that silencing your critics makes everything ok.  If the first thing you do is kill all the international lawyers, then you can have whatever international law you want.

            Or maybe you just have lawbreakers and their mouthpieces running a Gulag, and international law be damned.

            But we had better be prepared for the consequences.  Someone, somewhere, is going to try us, quite seriously, for war crimes.  And somewhere else, someone is going to commit war crimes against our soldiers because we fail to recognize their own combatants as POWs.  Part of our rationale for not treating the Taliban as POWs, for instance, has been that Afghanistan, whose armed forces the Taliban effectively supplied, was a “failed state.”  Yet, as Judge James Robertson of the U.S. District Court for D.C. pointed out, the warlord militias who captured U.S. Warrant Officer Michael Durant in Somalia in 1993, in an incident given wide exposure in the book and movie, Black Hawk Down, were not a state either.  The U.S. nonetheless demanded assurances that Durant be treated according to Geneva Three.  Why should a militia to whom we do not accord Geneva Three treatment be bound to give our soldiers that treatment?  There is no good answer.

            Bush and his lawyers will probably not be in power when that happens.  But the time will come when their expanded war powers will become war impotence.  And it won’t be pretty.


[1]   See here .  Justice Kenneth J. Keith of the New Zealand Court of Appeal traces Shakespeare’s reference to the boys to Holinshed’s Chronicles, but significantly, in those chronicles the boys apparently ran away.  K.  Keith, Rights and Responsibilities: Protecting the Victims of Armed Conflict, 48 Duke L.J. 1081, 1086 (1997?).

[2]   At the time of writing this, I was especially using Mark Danner’s Torture and Truth (2004).

[3]  So concluded the  Army’s 2004 Fay-Jones Report at 38-39.

[4]   M. Ratner & E. Ray: Guantanamo: What the World Should Know at 83 (2004).

Copyright (c) Jack L. B. Gohn

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