Starting from Here

• Author: Ashley S. Deeks
• Position: Attorney-Adviser, US Department of State, Office of the Legal Adviser
• Pages: 161-182

VIII

Starting from Here

Ashley S. Deeks*

I. Introduction

Professor Garraway and the organizers of this panel asked me to address a

piece by Professor Adam Roberts entitled "Detainees, Torture, and Incom-

petence in the 'War on Terror.'" 1As the title indicates, the piece is highly critical of

US actions over the past six years, and uses areview of three different books as a

launch pad for its arguments. In brief, Professor Roberts takes alargely retrospec-

tive look at US detention and interrogation policies since September 11, 2001, ar-

guing that anumber ofUS decisions along the way led to the abuses at Abu Ghraib.

He recognizes that it is complicated to apply the law of war to certain individuals

fighting US forces in different conflicts, but he concludes that the President's deci-

sion to treat them "humanely" in 2002 did not provide aclear legal framework and

charges the Bush Administration with both bad intentions and incompetence.

Professor Roberts discusses the legal and policy confusion that currently exists in

Afghanistan among the International Security Assistance Force (ISAF) and the

government of Afghanistan related to detainee treatment, and proposes that

NATO establish rules for treatment of detainees who are not entitled to prisoner of

war status. Finally, he reflects the often-heard concern about aperceived threat to

US separation of powers principles and concludes that the resort by the United

*Attorney-Adviser, US Department of State, Office of the Legal Adviser. The views expressed

herein are those of the author and do not necessarily represent the views of either the United

States government or the Department of State.

Startingfrom Here

States to a"war on terror" paradigm leaves quite abit to be desired, even in the

wake of all of the changes the US government has put in place since September 11

.

By way of response, Iwill spend my time discussing three issues: where US law

and policy currently stand in the three conflicts the United States is fighting, the

processes by which we arrived at our current positions, and how we might address

some of the ongoing legal and operational confusion in Afghanistan among NATO

allies. In focusing on the current state of US law and policy, Ido not mean to sug-

gest that several still-unresolved debates about the applicability of the Geneva Con-

ventions—and of the war paradigm to our struggle with al Qaeda more generally

—

are irrelevant. But to move this multiyear dialogue forward, Ithink it is important

to use the current state of play as the jumping-off point, whatever one may think of

the decisions that the United States made in the immediate aftermath of September

11,2001.

Before Idive in, Iwould like to say something about the abuses of detainees de-

scribed in the books that Adam Roberts has reviewed. Like many in the US govern-

ment, including the military itself, Iwill not and cannot defend that abuse. Events

like Abu Ghraib have been devastating to the reputation of the United States, espe-

cially in European and Arab States. Professor Roberts raises anumber of argu-

ments about the conflicts in Iraq and Afghanistan and with al Qaeda with which I

do not agree, and which Ilook forward to addressing. But Iwanted to make clear

up front that detainee abuse warrants no defense.

II. Where We Are Now—ASnapshot

The State Department's Legal Adviser, John Bellinger, spent aweek in January

serving as aguest blogger on Opinio Juris, awebsite devoted to international law

and politics. He posted pieces on Common Article 3, unlawful belligerency and the

US conflict with al Qaeda, among other topics. 2Professor Garraway served as a

guest respondent and opened his post with an old Irish saying. The saying involves

aforeigner who asks an Irishman for directions from his current location to the

nearest town. The Irishman tells him, "Well, Iwouldn't start from here!"3But

"here" is precisely where Iwould like to start. As Inoted, Professor Roberts con-

cludes his review with an assertion that the United States continues to rely on

flawed structures and rules to deal with its conflict with al Qaeda, and bemoans

where the United States has ended up in 2007. To evaluate this conclusion, let's

take asnapshot of where we are right now, putting aside the various legal develop-

ments that have gotten us to this point.

Because different legal paradigms apply to US conflicts in Iraq and Afghanistan

and with al Qaeda, Iwill treat each of them separately.

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