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Geoffrey Corn

Lessons from America’s Longest Held Prisoner of War

by Geoffrey Corn

In an isolated prison cell in the middle of the compound of the Federal Correctional Institute in Miami sits America’s longest held prisoner of war: General Manuel Noriega. The former head of the Panamanian Defense Force and de facto leader of that nation is no longer the defiant machete wielding strongman, but instead an aging relic of a very different national security era.

While the continued incarceration of General Noriega might not come as a complete surprise to many, his status as a prisoner of war protected by the Third Geneva Convention very well might. It indeed seems ironic that in the current era of intense debate over the applicability of this treaty to captured and detained “enemy combatants”, this notorious former “thorn in the side” of the first Bush administration continues to enjoy the benefits of this treaty as he serves his sentence for violation of U.S. domestic law.

Noriega’s status as a prisoner of war, trial, conviction, and continued incarceration offer several potential lessons related to the application of Geneva Conventions. First, how the government classifies a conflict significantly impact subsequent application of the law of war, and the relationship between law and policy in the execution of operations. Second, the conflict classification decision should not be based on political or policy expediency, but instead on the criteria provided by treaty, precedent, and highly respected commentaries. Finally, the liberal grant of prisoner of war status in no way constrains the power of our government to try and punish prisoners for pre-capture offenses.

Operation Just Cause, launched on December 19, 1989 to oust General Noriega and destroy the Panamanian Defense Force that sustained him, was the largest and most intense combat operation conducted by the United States since the Vietnam conflict. Although the combat phase of the operation was relatively brief, it involved fighting between U.S. and Panamanian forces, costing the lives of more than 20 U.S. servicemen and countless Panamanians. While this operation appeared to be a classic example of an international armed conflict, the U.S. government did not provide any conflict classification guidance for our forces until the operation was largely complete. As a result, U.S. forces began their operations without a formal determination of the legal status of the conflict, but instead resorted to the Department of Defense policy of applying the law of war to any armed conflict no matter how characterized.

For the hundreds of Panamanian Defense Force personnel captured by U.S. forces, this resulted in treatment “consistent with” the Third Geneva Convention. The U.S. never formally classified these captured personnel as prisoners of war, because subsequent to initiation of combat operations, the government determined that the conflict in Panama was not an international armed conflict. The rationale for this decision was that Guillermo Endara, the Noriega opposition presidential candidate who had by all accounts won a landslide victory in an election subsequently nullified by the General, had “requested” U.S. assistance. As a result, the U.S. government concluded that there was no dispute between Panama and the United States that led to the intervention of armed forces, and therefore the conflict in Panama was, at most, an non-international armed conflict with the U.S. assisting the legitimate government.

For most of the captured personnel, this decision had little consequence, as they were rapidly released at the termination of hostilities. General Noriega, however, was not so fortunate. As seen by the world on live television, he was ultimately captured by U.S. forces, and transported to the U.S, in his uniform, to stand trial for his alleged involvement in drug trafficking.

Once in the U.S., Noriega was brought to trial in the Southern District of Florida on the indictments that pre-dated the conflict and his capture. Noriega made a number of challenges to this prosecution based on international law, none of which proved successful. However, after his conviction, Noriega asserted his right to the protections and benefits of the Third Geneva Convention. In response, the government asserted the “invitational presence” theory originally relied upon to conclude the operation in Panama was not an international armed conflict. The District Court rejected this theory.

In an unequivocal opinion, Judge Hoeveler held that General Noriega was, as a matter of law, a prisoner of war. In what today seems like a prescient response to the government theory, the court emphasized the requirement to interpret and apply the Geneva Conventions broadly and in good faith. Consistent with this requirement, the Judge noted that conflict classification must be based on the de facto situation, and that the de jure status of the authority opposing U.S. forces is not the controlling consideration. So long as that authority possesses de facto control over the armed forces of the state engaged in conflict with U.S. forces, the international armed conflict test of the Geneva Conventions is satisfied. For the court, the situation in Panama fell so clearly into this category that it seemed to almost summarily dismiss the government theory:

The Convention applies to an incredibly broad spectrum of events. The government has characterized the deployment of U.S. Armed Forces to Panama on December 20, 1989 as the “hostilities” in Panama . . . However the government wishes to label it, what occurred in late 1989-early 1990 was clearly an “armed conflict” within the meaning of Article 2.

In reaching this conclusion, the court relied explicitly and extensively on the International Committee of the Red Cross (ICRC) Commentary to the Third Geneva Convention. This reliance reflected recognition of the value and the authority of this interpretive aid, so well understood by international law experts and practitioners.

Judge Hoeveler also addressed the government argument that it was not necessary to decide whether General Noriega was a prisoner of war because he would, as a matter of policy, be treated consistent with that status. The court rejected this argument, and noted the invalidity of attempting to substitute legal determinations with policy application:

The government’s position provides no assurances that the government will not at some point in the future decide that Noriega is not a POW, and therefore not entitled to the protections of Geneva III. This would seem to be just the type of situation Geneva III was designed to protect against.

The limit of policy to resolve issues related to the law of war seems particularly significant today. Even in the most complex operational environment, it is critical for the government to make a timely conflict classification decision in order to establish the legal foundation to control operational execution. Policy then becomes a useful tool to address issues not covered by the applicable law. But when U.S. forces engage in missions involving the application of combat power, the foundation provided by the law of war applicable to either international or non-international armed conflict must be acknowledged at the outset of the operation. Policy may supplement this foundation, but should not be used as a substitute.

The court’s holding that General Noriega was entitled to prisoner of war status did not, however, prevent his criminal punishment for pre-capture violations of U.S. law. As noted above, Noriega remains both an inmate and a prisoner of war. This “dual status” is consistent with the provisions of the Third Geneva Convention, which in no way bars the prosecution and criminal sanction of prisoners of war for offenses committed prior to capture. The power of the detaining state bring such individuals to justice extends to violations of both the domestic law of the detaining state, as was the case with General Noriega; and international law, such as pre-capture violations of the law of war. Prisoner of war status does result in the requirement to comply with certain minimal procedural standards during such prosecutions, and respect for a number of very basic privileges while sentence is being served. But the example of General Noriega clearly demonstrates that these obligations are not particularly burdensome, nor did they in any way meaningfully interfere with the General’s trial and punishment.

The example of America’s longest held prisoner of war suggests that perhaps everything old is new again. This case seems to provide insight into a number of the significant issues related to the detention and punishment of individuals captured during the war on terror: the applicability of the Geneva Conventions; the relationship of law and policy; the value of the ICRC commentaries; the need to interpret this law in good faith; and the feasibility of reconciling prisoner of war status with criminal sanction. Perhaps because this case was decided in a national security atmosphere far less charged than today’s enhances the credibility to the reasoned approach reflected in the opinion. While there are undoubtedly distinctions between the nature of our current enemies and the enemy we confronted in Panama, the final sentiment expressed by Judge Hoeveler seems to provide an excellent perspective on the complex issues related to future application of the law of war:

In the turbulent course of international events — the violence, deceit, and tragedies which capture the news, the relatively obscure issues in this case may seem unimportant. They are not. The implications of a less-than-strict adherence to Geneva III are serious and must temper any consideration of the questions presented.

What Are the "Principles" of the Law of War?

by Geoffrey Corn

When addressing the treatment of individuals captured or detained in relation to the War on Terror, the Bush administration routinely emphasizes the United States commitment to respect the “principles” of the Geneva Conventions. The most recent example of this came during the recent visit by the Secretary of State Rice to Europe, where she reassured her European counterparts that the United States remains committed to compliance with the “principles” of the Geneva Conventions.

Ironically, this reassurance came during the same visit in which Secretary Rice explained to the German Chancellor why a German citizen had been abducted, transported to Afghanistan, and detained for several months without the consent of the German government and based solely on a mistaken perception of “necessity”. Many critics might consider this a reflection of the consistent divergence between Bush administration statements and practice related to the “principles” of Geneva. However, the more troubling aspect of this example is that it reveals the simple truth that the Bush administration has never defined what it considers “principles” of the Geneva Conventions.

This use of this general concept of “principles” of the law of war without more specific definition is not new in the realm of planning and executing military operations. For the last two decades, the “principles” of the law of war have served as the foundation for Department of Defense law of war policy. According to Department of Defense Directive 5100.77, “The DOD Law of War Program”, the armed forces of the United States are obligated to comply with the “spirit and principles” of the law of war during all military operations, no matter how these operations were characterized as a matter of law. (Click here). This mandate was specifically intended to establish a baseline standard for U.S. forces applicable to military operations that ran the spectrum from non-conflict peacekeeping to high intensity armed conflict. Perhaps more importantly, it also ensured that during any military operation involving armed conflict, U.S. forces would apply the full range of law of war provisions as their “default setting” even in the absence of an official U.S. policy decision on the legal characterization of the conflict.

This policy mandate proved invaluable to U.S. forces during operations conducted in the absence of a timely conflict classification decision (such as Operation Just Cause in Panama) and during non-conflict operations (such as Bosnia). However, the Department of Defense never defined what rules constituted the “principles” of the law of war. Instead, defining the content of this mandate was routinely left to judge advocates providing advice in support of military operations. These officers were taught during their professional education that in so doing, they should interpret this mandate broadly and err on the side of humanitarian spirit of the Geneva Conventions. Accordingly, these officers learned that this umbrella term encompassed, at a minimum, three bedrock principles of the law of war: humanity (as reflected in the provisions of Common Article 3 and Article 75 of Additional Protocol I); distinction (as reflected in the rules related to military objective and precautions in the attack contained in Additional Protocol I); and the historically understood concept of military necessity. This was seen consistent with U.S. interests as it would assist in establishing and preserving the moral legitimacy of the overall U.S. effort.

Although this policy provided a basis for Judge Advocates to press for respect for the humanitarian objectives reflected in the law of war during all military operations, the lack of specific content rendered the mandate essentially malleable. This fact was clearly exposed following 9/11 by the policies, directives, and decisions that began to flow from the highest levels of our government. Perhaps the most prominent example of this development came in the form of the President’s February 7, 2002 memorandum addressing obligations towards Al Qaeda and Taliban detainees. In that memorandum, the President concluded not only that these detainees were not entitled to the protections of the Geneva Conventions, but that even the policy mandate that they be treated humanely was qualified “to the extent appropriate and consistent with military necessity.”

Qualifying the humane treatment obligation contradicts the longstanding understanding of the limited authority provided by military necessity, and therefore reflected a fundamental change in the application of the concept of “principles of the law of war” by the Bush administration. Using military necessity as an “override” provision to justify derogation of protections established by the law of war – particularly humane treatment – was universally condemned following World War II. Accordingly, military necessity justifies only those measures not otherwise prohibited by international law which are indispensable to bring about the prompt submission of an enemy. Ironically, it is this understanding of military necessity that is characterized as a “basic principle” in U.S. Army Field Manual 27-10, The Law of Land Warfare (http://www.afsc.army.mil/gc/files/FM27-10.pdf).

Subsequent decisions by the Bush administration seemed to confirm that the customary understanding of the universally binding nature of the principle of humane treatment had in fact been reassessed. As a result, military commanders and the judge advocates who advised them were left with even more uncertainty as they struggled to apply a “case by case” assessment of what this policy actually required.

This case by case approach to defining the content of the policy of compliance with the “principles” of the law of war raises serious questions as to true meaning of this commitment. Is the contemporary understanding consistent with the traditional “good faith” approach that served as the foundation for countless military decisions in the past? Or, has the concept of “respecting the principles” become a useful sound-bite in the information battle related to U.S. policy. Policy makers undoubtedly covet the flexibility that flows from an undefined general standard. However, the planning and execution of military operations to achieve national security objectives characterized as having the highest magnitude, in a legal environment laced with uncertainties (often caused by these same policy makers), justifies the official enunciation of a baseline list of rules derived from the law of war that fall under the term “principles.” Until this happens, the reality will unfortunately continue to be that the commitment of the United States to the “principles” of the Geneva Conventions and the law of war will mean whatever it needs to mean to achieve any given policy objective.

The McCain Amendment Compromise: Has the Message Been Diluted?

by Geoffrey Corn

The highly publicized McCain Amendment is now law. In order to secure the commitment of the President to support this statutory codification of the principle of humane treatment, Senator McCain agreed to the inclusion of a “superior orders” defense. The compromise legislation therefore provides that in any criminal or civil action against any employee of the armed forces or any other government agency for violation of this “humane treatment” mandate, obedience to orders may be raised as a defense. Accordingly, unless the activity forming the basis of the allegation is so obviously improper as to lead a person of “ordinary sense and understanding” to realize it was illegal, “just following orders” serves as an absolute defense. In addition, the reliance by the employee on advice of counsel is explicitly included in the legislation as an “important factor” in determining whether a person of “ordinary sense and understanding” would have recognized the action as illegal.

Proponents of principle of humane treatment are justified in their satisfaction that this legislation transforms what has heretofore been an executive policy into a legal mandate. However, it is impossible to ignore the reality is that this provision will discourage subordinates from questioning the propriety of interrogation tactics, techniques, and procedures they are directed to implement so long as that direction comes with the “legally sufficient” endorsement. Unfortunately, this compromise has undermined the important objective of ensuring all detainees in U.S. custody are treated humanely at all times. Instead of emphasizing the “bright line” nature of the principle of humane treatment, the compromise provision has instead validated the Bush administration assertion that when interrogating a terror suspect, the line between humane and inhumane treatment is blurry, and maximum discretion must be preserved for extracting critical information. While this may seem to some observers as a logical reconciliation of the humane treatment obligation and the necessities of national security policy, one should question whether it is consistent with the fundamental principles of the law of armed conflict.

Obedience to orders is without question an essential aspect of effective military operations, and any system of military discipline must ensure subordinates treat all orders with a powerful presumption of legality. This was undoubtedly a factor in the compromise to include a defense for subordinates who obey orders subsequently determined to be unlawful. However, the law of armed conflict relies upon the fundamental principle that the obligation of obedience is not without limit. Every service-member and civilian supporting military operations bears an individual responsibility to first question, and if necessary disobey any order that would result in a violation of the law. There is no question that such a decision to disobey an order carries substantial risk. However, it is a risk that duty imposes upon members of the armed forces and associated civilians. In no area is this duty more profound than with respect to the obligation to respect and protect individuals who are “out of combat”, and it is the principle of humane treatment that provides the standard that guides the execution of this duty. Neither the importance of the intelligence requirement being pursued, the affiliation of the detainee, nor the level of authority directing the interrogation alters this standard.

Historically, commanders were expected to serve as the bulwark against any derogation of humanitarian protections by subordinates. This responsibility extended to ensuring subordinates were properly trained and supervised to ensure “bright line’ rules were not endangered in the heat of battle. The express inclusion of a superior orders defense in the compromise legislation, complete with the emphasis that prior legal review will almost certainly provide subordinates “top cover” in all but the most extreme cases, will have the effect of diminishing the probability that subordinates will exercise independent judgment in assessing the propriety of carrying out a questionable interrogation or detention procedure. As a result, a critical component of compliance with the law of armed conflict in the execution of military operations has been degraded.

The McCain amendment was intended to emphasize the indelible nature of the humane treatment obligation, and the duty of all subordinates – especially those in command – to question orders inconsistent with their basic understanding of how any human should be treated. The initiative to codify this obligation in domestic law reflected the rejection of unlimited presidential authority to decide when and to what extent the principle of humane treatment applied to detainees. Contrary to these objectives, the compromise legislation has essentially confirmed the proposition that it is impossible to create a bright line humane treatment standard, and has endorsed a “top cover” type mentality for future detention and interrogation operations. This is unfortunate, for the obligation to treat all detainees humanely, even those suspected of affiliation with Al Qaeda, is so basic that subordinates should be taught that any order that appears in violation of this principle should be questioned, even when the orders come from the highest levels of command with approval by senior administration lawyers.

Finally, thanks to Julian and Roger for the privilege of guest blogging.