The treatment and interrogation of prisoners of war and detainees.

Author:Graham, David E.

    The treatment and interrogation of Prisoners of War (POW) and detainees remains one of the most topical and controversial matters confronting the United States government. In this Article, I will discuss the principal legal issues associated with this subject. I will attempt to present, as objectively as possible, the different views associated with this topic, as there are certainly diverging opinions. However, my approach in discussing this particular subject is founded on a strong belief that the United States has an obligation to comply with the rule of law: domestic rule of law, international law, and, specifically, the Law of Armed Conflict, itself an integral part of international law. I do not view such compliance as a matter of convenience or a matter of choice. I consider U.S. compliance with the Law of Armed Conflict a strategic imperative, and it is on this basis that I approach the subject at hand.

    With that foundation, let us look at the legal issues associated with the interrogation and treatment of POW and detainees. It is important to draw a distinction between these two categories of individuals. We are, in fact, dealing with POW on the one hand, and the law, rules, and regulations that apply to such personnel, and with detainees on the other, and the law, rules, and regulations that apply to these individuals. Status determination is extremely important when one makes decisions with respect to treatment and interrogation matters.

    This Article will focus on the most recent military operations involving U.S. and Coalition forces. I will look first at the status of the individuals taken into captivity during Operation Enduring Freedom in Afghanistan, and then examine the law, rules, and regulations applicable to those personnel held captive as the result of Operation Iraqi Freedom.

    Let us begin by focusing on the Afghan situation. From day one in the Afghan conflict, which commenced on October 7, 2001, U.S. and Coalition forces took into custody an exceptionally large number of both Al Qaeda and Taliban captives. (2) Almost immediately, the issues became: What is the status of these individuals? Do we afford them POW status? Are they entitled to the rights and privileges of the Third Geneva Convention Relative to the Treatment of Prisoners of War, or do they fall into another category of personnel, that is, detainees? You may recall that, although one will not find such a decision reflected in a Presidential Directive or in Department of Defense (DOD) guidance, the initial determination on the part of this Administration was that it would neither apply the Geneva Conventions to this conflict in general, nor the Third Geneva Convention dealing with POW to Al Qaeda or Taliban captives in particular.

    This initial decision on the part of the Administration was driven almost exclusively by the first of three Department of Justice (DOJ) opinions. This particular opinion was issued on January 22, 2002 and was aptly entitled, "Application of Treaties and Laws to [A]l Qaeda and Taliban Detainees." (3) DOJ's analysis with respect to the status of Al Qaeda personnel proceeded along these lines: Mr. President, Al Qaeda, as an organization, is a non-state entity, a non-state actor

    whose mission and purpose is international violence. As a non-state actor, it cannot sign international conventions, and because it cannot sign such conventions, it can be afforded no rights and privileges under these conventions, specifically the Geneva Conventions, and, even more specifically, the Third Geneva Convention dealing with POW. Second, Mr. President, Al Qaeda members are private citizens who have engaged in belligerent acts against a sovereign state--i.e., the United States--and, as such, they are unlawful combatants or unprivileged belligerents. As a result of this fact, these individuals exist beyond the realm of international law. They are not to be afforded the rights and privileges of international law, specifically the rights and privileges of the Third Geneva Convention. They are not entitled to POW status; they are simply detainees. (4)

    In this portion of the opinion, the Department of Justice also dealt with a legal argument relevant to the issue of status that had surfaced over the preceding weeks, an argument along these lines: The conflict between Al Qaeda and the United States is actually a conflict of a non-international nature. In other words, Common Article 3 of the 1949 Geneva Conventions, the article of the Conventions that deals with non-international conflicts and the rights and privileges that flow to individuals taken captive during such conflicts, should be applied to this situation. The Justice Department dismissed this out of hand, saying: Look at the nature of the conflict involved here. The ongoing conflict between Al Qaeda and the United States is not an internal conflict; it is not a civil war. Accordingly, Common Article 3 does not apply. (5) For what it is worth, I think the DOJ was correct in its assessment of this particular issue.

    The Justice opinion then went on to discuss the status of the Taliban and its personnel. Here, DOJ noted that this might well be perceived as a more careful question, a closer issue. The opinion quickly noted, however, that such was not really the case. Why? Because, Mr. President, you can simply suspend the applicability of the Geneva Conventions to this conflict as a whole and, more specifically, suspend the applicability of the Third Geneva Convention to the Taliban individuals. (6) How is this possible? Because, Mr. President, acting under your constitutional Article II authority, you can unilaterally suspend any part of or all of any international agreement. And here is why you should consider doing this, Mr. President. Afghanistan is nothing more than a failed state; it has no central functioning government. Afghanistan has also demonstrated, on many occasions, that it is either unwilling or unable to fulfill its own international obligations. Third, it enjoys very little, if any, international recognition as the legitimate government of Afghanistan. (7)

    The opinion then noted: Alternatively, Mr. President, you may simply choose to apply the Geneva Conventions, particularly the Third Geneva Convention, as a matter of policy, as opposed to a matter of law. Having applied the Third Convention to the Taliban personnel, you can then make a determination that these individuals do not meet the requirements of this Convention and, therefore, are not entitled to POW status. So you see the beauty of this line of reasoning, Mr. President. You have reached the same determination regarding the status of Taliban personnel, but you have applied the Third Convention in arriving at this determination. (8) DOJ adds this caveat, however. If you choose to pursue this route, Mr. President, this would constitute a recognition that we are involved in an international conflict between State Parties. (9) The bottom line: Taliban personnel, in the view of DOJ, were not entitled to POW status; they, too, should be considered detainees under international law.

    The Justice Department dealt with one other legal argument in this first opinion, which centered around the impact of customary international law on the matter of status determination. It was made along these lines: Regardless of a decision made by the President, acting within his perceived constitutional authority under domestic law, there exists a customary international law obligation to apply the Geneva Conventions to the situation at hand. These Conventions are clearly customary international law and are therefore binding on the United States, as well as the President, regardless of any decision that the President makes acting solely in his constitutional capacity. (10)

    The Justice Department dismissed this argument. It noted, simply, that customary international law is not federal law and, therefore, is not binding on the President. The validity of this determination is certainly open to debate, but, with this very abrupt refutation of the binding nature of customary international law on the President, DOJ arrived at a decision with respect to the status of both Al Qaeda and Taliban personnel: They are not entitled to POW status. They are simply detainees. (11)

    The reaction to this determination on the part of the Administration was fairly swift. It was met with significant international rebuke. (12) It was harshly criticized within the United States and, quite frankly, within the government itself, as many government lawyers were of the view that the conflict in Afghanistan was clearly an international conflict and, therefore, a conflict to which the Law of Armed Conflict applied. The Geneva Conventions were an integral part of the Law of Armed Conflict, if not the very foundation of this law. The Conventions, these lawyers argued, must be applied to the Afghan conflict.

    This debate occurred for a number of weeks. Finally, the Chairman of the Joint Chiefs of Staff, supported by Secretary of State Powell, argued: Look, if for no other reason, you have to think of the ramifications to our own servicemembers when they are deployed overseas in the future and placed in harm's way. If you make the determination that the Geneva Conventions are not applicable to this conflict, and the Third Geneva Convention is not applicable to Taliban and Al Qaeda personnel, consider the potential impact that this might have on U.S. servicemembers. (13)

    At this point, the Administration appeared to take a step back. On February 7, 2002, the President issued a memorandum to his principal cabinet members, to include the Secretary of State, the Secretary of Defense, the Chairman of the Joint Chiefs, and the Director of the Central Intelligence Agency. (14) This particular memorandum is so important, in terms of understanding the...

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