A Response from the Human Rights Community

[Opinio Juris welcomes Deborah Pearlstein as a guest respondent. She will spend the coming year as an Associate Research Scholar at the Woodrow Wilson School for Public and International Affairs at Princeton University. For the past three years, she has directed the Law and Security Program at Human Rights First.]

With thanks to Opinio Juris for inviting me to engage in this interesting discussion, I wanted to offer a few remarks on Mr. Bellinger’s thoughtful posts. I should also thank Mr. Bellinger for his detailed and public engagement with these important issues.

There are several points on which Mr. Bellinger and I agree. Most generally, many of the legal issues surrounding the detention and trial of terrorist suspects are indeed complex. And it is also true in this area of law and policy, as all others, that it is far easier to criticize than to propose affirmative solutions. On our particular subject matter, Mr. Bellinger is right that the war in Afghanistan beginning in 2001 was an armed conflict within the meaning of the law of war (international humanitarian law or IHL), and that in the course of that conflict, the United States was entitled to seize and detain prisoners. I also think – and here I perhaps differ from some of my colleagues in the human rights community – that there is a reasonable argument to be made there is still an armed conflict governed by IHL, among other laws, under way in Afghanistan.

That said, there a number of points on which Mr. Bellinger and I appear to disagree. In the interest of space, I’ll address just a few of these. And I’ll hope for an opportunity for further discussions.

I should note at the outset that Mr. Bellinger’s arguments are limited in their persuasiveness not only by several specific errors, but also by the reality that there are certain aspects of the law respecting detention, treatment and trial that do not present complex questions – aspects that the current administration has violated nonetheless. From the prohibition against torture and cruel treatment, to the simple requirement that all detainees seized in the course of armed conflict are entitled to a so-called Article 5 hearing to determine whether they are entitled to prisoner-of-war protections (codified in existing U.S. Army regulations), the administration has devoted much of the past five years arguing even these (I would have once thought) inarguable points.

Take for example the principle that the prohibition against torture and cruel treatment – contained in Common Article 3 of the Geneva Conventions – applies to all those detained by the United States in the course of armed conflict. As the International Committee of the Red Cross, the body designated by the Geneva treaties as primarily responsible for treaty interpretation, has long held, all those caught up in the course of armed conflict are governed by one of the Geneva Conventions—either as lawful combatants under Geneva III, or as civilians (whether engaged unlawfully in combat or not) under Geneva IV. (Take a look at International Committee of the Red Cross, International Humanitarian Law and Terrorism: Questions and Answers (May 5, 2004).) Contrary to positions the administration took for years, right up until it lost this argument when the Supreme Court decided Hamdan last year, Common Article 3 applies no matter the detainee’s status as “prisoner of war,” “unprivileged belligerent,” civilian, or anything else.

Let me unpack this example a bit, because this understanding of the applicability of Common Article 3 I think goes to the core of complaints about the administration’s use of the term “enemy combatant” these past years. Contrary to Mr. Bellinger’s suggestion, I would not argue that the primary problem with this designation is that it denies to Al Qaeda members the special status of “prisoner of war.” Indeed, I don’t know anyone who argues that Al Qaeda fighters are entitled to POW protection. Rather, I objected vigorously to the administration’s efforts to use the “enemy combatant” label because, among other things, it was used as a way of skirting otherwise applicable laws, particularly to deny to a large swath of detainees the protection of Common Article 3. (See, for instance, former Defense Secretary Rumsfeld’s comments at a press briefing in 2002 “[T]echnically, unlawful combatants do not have any rights under the Geneva Conventions.”). Under IHL, however, the key difference between a “prisoner of war” and anyone else engaged in combat is not what level of cruelty one can subject them to during interrogation. Rather, it is whether they enjoy the so-called combatants privilege: in brief, if you’re a lawful combatant (such as the uniformed military of a state party to the Geneva Conventions) and you shoot someone in the course of armed conflict, you can’t be charged with murder for doing it. In contrast, if you’re not lawfully engaged in combat (as in the case of a civilian committing murder in the course of armed conflict), you can be prosecuted for shooting someone, and you’re not entitled to the very special protections afforded privileged “prisoners of war.” If individuals (including Al Qaeda members) not part of a state army or other legitimate organized military force engage directly in combat in the course of armed conflict, they can and should be prosecuted (criminally or through a lawfully constituted military tribunal). But whether you’re privileged to kill people during war or not – the lesson of Common Article 3 (in the prisoner of war Convention, Geneva III, or in the Convention for the protection of civilians, Geneva IV) is that everyone is entitled to that baseline humane treatment. That is one of the conclusions the administration was trying to avoid with the use of terms like “enemy combatant.” And that is what Hamdan rejected.

(An aside to respond to the argument Mr. Bellinger touches upon that Common Article 3 is too vague a standard to hold our troops to observe. I’m deeply skeptical of this claim. Our police officers daily apply the very general standard “probable cause”; our troops can likewise well apply the standards “cruel treatment” and “outrages upon personal dignity” within the meaning of Geneva. In any case, if there were any doubt, the administration and Congress could quite simply resolve it in favor of greater clarity, and greater criminal liability. (In the Military Commissions Act, the “clarity” objection was resolved by specifying particular violations, but by generally narrowing liability under the War Crimes Act.) For what it’s worth, the standard I’d recommend for understanding what Common Article 3 prohibits: if we’d be outraged if someone did it to our troops, it’s an outrage if we do it to someone else. The standard may not be perfect, but I suspect it might help us avoid in the future some of the conduct we’ve seen in recent years – forcing detainees to remain naked, in freezing cells, standing until their legs cramp in excruciating pain, denying them access to a bathroom when they need it and depriving them of virtually all human contact for months on end.)

None of this is to suggest that the abusive treatment afforded some “enemy combatants” these past years is the only problem with the administration’s use of the term. There are many problems with it. To take just a few others that came up in recent posts: Mr. Bellinger is wrong to suggest that sets of fighters (including the Taliban) in the Afghanistan war could be categorically labeled unlawful enemy combatants and across the board denied POW protection. Excluding a whole class from protection of the Geneva Conventions (according to the doctrine of Rumsfeld and other senior administration officials whose views were expressed in early internal memos) is inconsistent with the individualized hearings contemplated by Geneva III, Article 5. Indeed, all detainees who question their status are entitled to an Article 5 hearing upon capture – not, as the CSRTs ultimately provided, hearings several years and several thousands of miles removed from the field of conflict when witnesses to the capture and evidence of innocence are all but impossible to come by. And as has now been extensively documented, beyond their failings of temporal and geographic proximity to the point of capture, the CSRTs have fallen badly short of fairly and accurately determining whether detainees were rightly captured in the first instance. (Tim Golden’s December 31, 2006 piece in the New York Times on the flaws of the CSRTs was quite powerful on this point.) The CSRTs are not the kind of hearing Geneva had in mind.

Mr. Bellinger’s argument as to why Taliban soldiers are not entitled to POW protection is particularly problematic. As the armed force of Afghanistan, a state party to the Geneva Conventions, Taliban fighters held by the United States would appear to be quintessential prisoners of war. But according to Mr. Bellinger, because the Taliban wore no distinctive uniform and because they unlawfully attacked civilian targets, they are not entitled to enjoy POW protection. Mr. Bellinger is right to acknowledge the text of Geneva III does not clearly require that the armed force of a state party wear uniforms; being a member of the state’s armed forces is status enough to qualify for POW protection. In any case, on the facts, Mr. Bellinger is too facile – Taliban often wore black turbans that distinguished them from the rest of the population. Beyond that, American forces in Afghanistan could themselves be found out of uniform for various reasons. (See one photo of this in Human Rights First’s 2003 publication “Assessing the New Normal.”) If we insist on requiring that combatants be uniformed at all times to receive POW protections, we may well end up depriving our own troops of the POW protections we rightfully demand they receive. That can’t plausibly be an outcome we seek.

Perhaps most troubling in this line of argument, Mr. Bellinger asserts that the bargain the Geneva Conventions strike may be summarized as follows: “Ignore the laws of war, and you cannot seek the status given to lawful combatants.” Because the Taliban violated the law of war, they are not entitled to the protection of the law of war. This is something like a circular argument. The Taliban no doubt committed war crimes; accordingly they should be prosecuted for these violations under the law of war. If we reject the idea that the law of war applies to them, we jeopardize our ability to pursue their prosecution for war crimes under these very same laws. I do not believe the administration can seek to obtain the power benefits that come with IHL without accepting the rights burdens that also attach. The Hamdan Court embraced this principle in insisting military commissions set up to try prisoners for war crimes themselves comply with the law of war.

Let me conclude by returning to what I believe are two more fundamental disconnects between Mr. Bellinger’s arguments and the position of many administration critics. First, I am pleased that Mr. Bellinger believes that the “phrase ‘the global war on terror’ … is not intended to be a legal statement.” But where Mr. Bellinger may aim to draw a distinction between arguments the administration makes rhetorically or as a matter of policy, and arguments it makes expressly as a matter of law, that distinction is not one the administration’s litigators have hewed to in case after case in which it has resisted judicial review of any and all aspects of the global detention system the United States has operated for the past five years, and in which it has argued that because we are at war, the President enjoys authority, that he otherwise does not have, to surveil, detain, question, try individuals, and keep secret information. Calling it a “war” – rhetorically or not – figured centrally in the President’s legal arguments. That the “war” has shifted in its scope and description from brief to brief at a minimum calls into some question the justification for the broad swath of policies the administration has pursued in this conflict’s name.

Finally, I suspect Mr. Bellinger might agree that some of the actions taken in the first years following the attacks of September 11 were in fact inconsistent with IHL. Indeed, criticism of Guantanamo Bay and various forms of detainee abuse – both as a matter of law and policy – is by now so thoroughly bipartisan and international in nature, it is hard to see these policies as anything but a bad mistake. What is critical now, however, is not to compound that mistake by torquing our interpretation of IHL (and passing new legislation like the Military Commissions Act) in order to bolster an argument that these failed policies (and other past mistreatment of prisoners) were legally justified. The solution to Guantanamo and related policies now lies in treating them as limited to what they were – a flawed approach, legally erroneous but sui generis – not necessary to the broader policy challenge of combating the threat of terrorism. There is no doubt the United States needs to be able to detain some people to combat terrorism, and needs to be able to question people to elicit information. But in addressing these pressing demands, Congress and the administration should start from the basic security policy imperatives – not from the real but separate need to deal with, for example, the 300 some remaining detainees still subject to the Guantanamo mistake. Let’s not make law – as we did in the MCA – that purports to reinterpret U.S. and international law forevermore just to try to correct for the mistakes made in this particular case. Five-plus years after September 11, and with all the calm deliberation we can afford, we can pursue security policy with a view to ensuring that the protection of fundamental individual rights under U.S. and international law are at the core of U.S. actions against terrorism.