Wrap Up Discussion I

As I look to wrap up what has been an energetic and stimulating dialogue on a host of international legal issues, I would like to post some responses now, and will conclude next week. Let me reiterate how much we appreciate the comments, especially from those who have provided detailed legal and historical analysis. For too long, the discourse on these complex and difficult issues has been at too high a level of generality, and these comments have been very helpful to us.

I want to begin by tackling perhaps the most fundamental issue underlying many of the threads this week: why the United States believes it is in an armed conflict with al Qaida. Marko, for example, has stated that he continues to disagree with the premise that the conflict with al Qaida is a global armed conflict, preferring to view the conflict as discrete wars in Afghanistan and Iraq. I have already discussed in depth why we view our conflict with al Qaida in global terms. The magnitudes of the attacks they have undertaken against us and our allies across the globe belie the comforting conclusion that the enemy is confined to discrete geographical locations. But regardless of whether one accepts that argument, it seems beyond controversy that our actions in Afghanistan in 2001 and 2002 constituted a war. U.S. and Coalition forces were engaged in military actions, not enforcement of criminal laws. And I think the continued casualties inflicted on Coalition troops in Afghanistan, and on civilian populations around the globe by al Qaida, confirm that this conflict is ongoing. Most critically though, whether one then views those detained in this conflict as detained in a global or territorially-discrete conflict does not change the central legal proposition that they are wartime detainees to whom the law of war applies.

What it means for individuals to be detained under the law of war has been the source of much consternation on this board as well. Many posts have suggested the view that everyone captured in the conflict with al Qaida and the Taliban is entitled to protection under either the Third or Fourth Convention. While I can understand an aspiration that there be no gaps in coverage between the two Conventions, I thought Geoffrey Corn’s reference to the final record of the drafting sessions helpfully clarified that the conventions were designed to protect certain specific types of individuals, not everyone.

For example, the Third Convention on prisoners of war describes with great precision the 6 categories of persons who are considered to be prisoners of war — including members of the armed forces of a party to the conflict, members of other militias and volunteer groups who meet four specific conditions, and persons who accompany the armed forces — and 2 categories of persons who are to be treated as prisoners of war. The Fourth Convention on civilians specifically excludes several categories of persons from its coverage, such as nationals of a state not bound by the convention and, in certain circumstances, nationals of a neutral state in the territory of a belligerent, and nationals of a co-belligerent state — as well as persons covered under the First, Second or Third Conventions. As Geoffrey Corn’s post makes clear, the Fourth Convention was designed to protect civilian victims of war, and was not intended to be a “safety net” to protect “illegitimate bearers of arms who could not expect full protection under rules of war to which they did not conform.”

Others took issue with how we’ve gone about determining whether a combatant is entitled to protection under the Third Convention. Ken Anderson’s observation that while as an international law matter the President was authorized to designate the Taliban and al Qaida as unlawful combatants, as a policy matter it would have made sense to use Article 5 Tribunals to do so, is also worthy of comment. The United States was not, and no country could have been, prepared to deal with the type of massive terrorist attacks and worldwide terrorist network that we confronted on September 11. There was no book on a shelf somewhere that contained a ready legal guide to combating armies of transnational terrorists. Article 5 of the Third Convention provides: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” In 2002, our government concluded that because, as a legal matter, al Qaida (because they were not a party to the Convention) and the Taliban (because of their actions) could not qualify under any circumstances as POWs, Article 5 Tribunals were not necessary or appropriate.

Since that time, U.S. policies and practices have had to evolve significantly.

The United States has now created additional processes to ensure that those detained at Guantanamo are the right people to detain and are not detained any longer than is necessary. To ensure that we are holding the right people, every detainee in Guantanamo has his case reviewed by a formal Combatant Status Review Tribunal, which determines whether a detainee is properly classified as an enemy combatant. The detainee has the assistance of a military officer, may present information, and may appeal the determination of the CSRT to our federal courts. It is simply not correct to say that detainees have not and will not have access to our federal courts to review their detention. Nearly 40 detainees have been released as a result of this process.

Detainees who the United States does not intend to prosecute by military commission also have their detention reviewed annually by an Administrative Review Board. This Board determines whether the detainee can be released or transferred without posing a serious threat to the United States or its allies. We are aware of concerns about the indefinite nature of the conflict with al Qaida and the resulting concerns about indefinite detention. ARBs attempt to address these concerns by balancing our authority to detain fighters so they do not come back to fight us again against our desire not to hold anyone any longer than necessary. To date, more than 200 detainees have been released or transferred pursuant to the ARB process.

While I hope this addresses some of Katherine’s (and Nathaniel Nerode’s) concerns about the CSRT and ARB process, I do think she raises a good point about the difficulty of repatriating some detainees who have been designated as eligible for transfer or release. We have nearly 75 additional detainees that we would like to move off of Guantanamo, but have been unable to do so to date. In some instances, countries are not willing to take back their nationals, either because they cannot confirm their nationality or because they lack the will to accept back those that have been at Guantanamo. In other instances, countries have been unwilling or unable to take the steps needed to ensure that transferred detainees will not pose a threat to the United States or its allies. We are not in a position to transfer detainees to still other states because we have concerns about how those states will treat their nationals once returned. The State Department will continue to push countries to take back their nationals with appropriate security and humane treatment assurances. Similarly, we look to other countries in Europe and elsewhere help resettle those detainees who cannot be repatriated. Guantanamo is not going to be closed any faster by more breathless calls for its “immediate” closure, but foreign governments and NGOs can help reduce the number of detainees by urging countries to take responsibility for their nationals.

Katherine also wrote that she utterly disagreed with the contention that the Convention Against Torture does not apply to the war on terror. I want to clarify (again!) that this has never been our contention. We have never said that the Convention Against Torture (or the ICCPR for that matter) does not apply in times of war; frankly, this is one area where our position has repeatedly been mischaracterized, including by the Committee Against Torture and the Human Rights Committee.

What we have said is that from a legal perspective, whether a particular situation falls within the scope of any treaty requires a review of the specific conduct and the potentially relevant treaty provision(s) according to their terms. When dealing in situations of armed conflict, you also have to take into account that there is an entire body of law — the law of armed conflict or international humanitarian law — that provides specialized rules (the lex specialis) that govern. This does NOT mean that we think the CAT does not apply in a time of war. Of course it does. Our police are not free to ignore the CAT when they make arrests inside the United States. But when our troops are engaged in military operations, they follow the applicable laws of war, which provide specific rules (such as for the repatriation of prisoners) but which also include many analogous and often identical rules (such as the prohibition against torture).

As lawyers we believe that you have to read the treaties as they are, not as how some would like them to be. For example, we are often criticized for our long-standing position (dating from when Eleanor Roosevelt negotiated the Covenant) that the ICCPR does not apply extraterritorially. This view is based is based on the plain text of Article 2 of the ICCPR, which says that the Covenant applies only to individuals who are both within its territory and who are subject to its jurisdiction. This interpretation is supported by the plain text of the convention as well as its negotiating history (travaux preparatoire). You can read about our interpretation in detail here.

Another example — one Katherine mentioned — is Article 3 of the Convention Against Torture, which is a prohibition on transferring persons to another country where it is more likely than not that they will be tortured. One of the legal issues that has arisen in interpreting Article 3 has been whether it applies to transfers from outside the United States. Again, our legal conclusion, based on the plain text and Supreme Court interpretations of the term “refouler” (see Sale v. Haitian Centers Council, 509 U.S. 155 (1993)) as well as the negotiating history of the provision is that it does not. (More detail is on pages 32-37 of this document).

While we recognize that some might not agree with that legal analysis (the Committee Against Torture did not), we also believe that is based on a solid, good faith legal analysis of the text of the Convention, not on some results-driven attempt to evade the law.

Of course, we share the concern about not sending people to face torture. That’s why regardless of the legal analysis, in all cases the United States applies the standard the United States agreed to in Article 3 to detainees transferred from outside the United States (e.g., Guantanamo) as a matter of policy. We do not transfer people to countries where we believe it is more likely than not that they will be tortured. This policy applies to all components of the U.S. government and to individuals in U.S. custody or control wherever they might be detained.

Just as we must be careful about asserting what treaties mean, similarly we think people need to be more careful when making assertions about what constitutes “customary international law.” This has received attention in many posts, and some have cited to the recent study by the International Committee of the Red Cross (ICRC) on Customary International Humanitarian Law to support their arguments. There is general agreement that customary international law develops from a general and consistent practice of states followed by them out of a sense of legal obligation. Further, the law develops largely from the practice of specially affected states, not from commentators, statements by non-governmental organizations, or the practice of states with little history of participation in the activities in question. For that reason, the United States has concerns about the methodology of the ICRC study, and we have addressed those concerns directly with them. While we welcome the study’s discussion of this complex and important subject, and appreciate the major effort that the ICRC and the study’s authors have made, we are not in a position to accept without further analysis the study’s conclusions that particular rules related to the laws and customs of war in fact reflect customary international law.

A number of comments addressed the issue of proportionality, and correctly noted (Geoffrey Corn/Matthew Gross) that the concept is as much a part of state practice as it is based in treaty law. In addition to the Army Field Manual identified by Corn, the U.S. Navy’s Commander’s Handbook on the Law of Naval Operations provides that incidental injury or collateral damage must not be “excessive in light of the military advantage anticipated by the attack.” The concept of proportionality appears in somewhat different terms in Articles 51(5)(b) and 57(2)(a)(iii) of Additional Protocol I. Proportionality is at issue not only in battlefield applications, but in the strategic context as well, as reflected in Daniel Webster’s letter to Mr. Fox concerning the Caroline incident (noting that Her Majesty’s Government would have to show that the Canadian authorities did nothing “unreasonable or excessive”?) and in the advisory opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons (“the submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law.”?)

Although time and space do not allow a complete discussion of the concept of proportionality as relates to all the questions raised by Benjamin Davis, Katharine and others, it is our position that the response to the attacks of 11 September 2001 has been as limited and as focused as possible to decisively counter the threat to the United States. The combat operations in both Afghanistan and Iraq were “swift and decisive” (as Matthew Gross referred to the war in Iraq). As relates to detainee operations and the unlawful enemy combatants at Guantanamo Bay, Cuba, it is instructive to recall that only about 700 of over 80,000 individuals who were detained in Afghanistan, Iraq and elsewhere were transferred to Guantanamo — the vast majority were screened and released.

Along those lines, several of the commentators repeated some of the allegations that have appeared in the press and in other fora about various U.S. actions. As I asked the U.N. Committee Against Torture, I would ask you not to believe every allegation that you have heard. Allegations about U.S. military or intelligence activities have become so hyperbolic as to be absurd. Critics will now accept virtually any speculation and rumor and circulate them as fact. The U.S. Government has attempted to address as many of these allegations as quickly and as fully as possible. And yet, as much as we would like to deny the numerous inaccurate charges made against our government, because many of the accusations relate to alleged intelligence activities, we have found that we cannot comment upon them except in a general way. So we ask that, when considering the “proportionality” of our actions in the global war on terror, everyone keep a sense of proportion and perspective about the relatively few actual cases of abuse and wrongdoing that have occurred. The United States is committed to the rule of law and has a well-functioning legal system to ensure criminal and civil accountability.

And speaking of criminal accountability, the comments to my post on The Meaning of Common Article Three reinforced in my mind the importance of clarity in criminal statutes and their implementing regulations. Katherine asks, “Doesn’t the U.S. Army court martial people for ‘conduct unbecoming an officer and a gentleman.'” Indeed, the Army does so, as do the other uniformed services. However, while the text of Article 133 of the Uniform Code of Military Justice (a federal law, enacted by Congress in 10 U.S.C. 47) proscribes “conduct unbecoming,” the Manual for Courts-Martial (prescribed by Executive Order 12473, April 13, 1984, to implement the U.C.M.J.) contains etailed explanations of the nature of the offense, the type of conduct that violates the article, and examples of specific offenses. As I noted in my post, the US government never prosecuted anyone under the War Crimes Act, perhaps because of the lack of clarity in the statute. I believe the amended Act goes a long way toward correcting that lack of clarity, particularly since it contemplates that the President may issue further interpretations of what constitutes violations of CA3. I concur with Non liquet, citing Marty Lederman, that simply because a provision is broad does not necessarily make it vague. But, as Alan Kaufman notes, people are “seriously divided” on many of these issues.

Finally, I do want to briefly touch on Eric Posner’s comments about the bargain theory of war. While I found his piece to be an interesting intellectual exploration of the theory underlying the law of war in general, and the Geneva Conventions in particular, I believe it was an oversimplification of the relevant considerations. Eric contends that there is a dichotomy between the bargain model, whereby one limits one’s war making ability to extract similar concessions from other states, and the universalist model, whereby individuals have certain basic rights that cannot be transgressed regardless of that individual’s conduct. But the truth is that the law of war and the Geneva Conventions have elements of both concepts. For example, as I’ve already explained the Third Convention does operate as a bargain of sorts, by for the most part reserving its protections for soldiers of States that have accepted its strictures. But Article 85 of that Convention explicitly maintains POW treatment for those who qualify even after conviction for a violation of the laws of war, an example of universalist thinking. At the end of the day, I think the United States acts true to its tradition and history in considering certain norms sacrosanct, such as the prohibition on torture, and therefore cannot be disregarded regardless of the behavior of the enemy. But I also think we act consistently with international law in denying the full protections accorded lawful combatants to terrorist groups like al Qaida.