In case you've lost your directory of administration legal hacks, John Yoo is the former Justice Department official who authored key memos arguing that the Geneva Conventions don't apply to the US detainees from the Afghanistan conflict. Last wednesday Mr. Yoo tried to defend US detention policies in Guantanamo and Iraq on the WSJ editorial page:
In light of the Abu Ghraib prison scandal, critics are arguing that abuses of Iraqi prisoners are being produced by a climate of disregard for the laws of war. Human rights advocates, for example, claim that the mistreatment of Iraqi prisoners is of a piece with President Bush's 2002 decision to deny al Qaeda and Taliban fighters the legal status of POWs under the Geneva Conventions. ...
It is important to recognize the differences between the war in Iraq and the war on terrorism. The treatment of those detained at Abu Ghraib is governed by the Geneva Conventions, which have been signed by both the U.S. and Iraq. President Bush and his commanders announced early in the conflict that the Conventions applied. Article 17 of the Third Geneva Convention, which applies to prisoners of war clearly state that: "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever." This provision would prohibit some interrogation methods that could be used in American police stations.
One thing should remain clear. Physical abuse violates the Conventions. The armed forces have long operated a system designed to investigate violations of the laws of war, and ultimately to try and punish the offenders. And it is important to let the military justice system run its course.
The argument here is badly organized. Most of the abused Abu Ghraib detainees - if not all - were civilian detainees not POWs. The Third Geneva Convention - that which pertains to POWs -- does not apply to civilian detainees. Civilian detainees are governed by the Fourth Geneva Convention.
Mr Yoo carefully rules out physical abuse. But he's not willing to explicitly rule out the intimidation, humiliation and other non-physical forms of abuse practiced at Abu Ghraib. As we all know, humiliating detainees is definitely the way to bolster your international standing in the fight against terrorism.
Article 5 of the Fourth Geneva Convention, which governs the treatment of civilians in occupied territories, states that if a civilian is definitely suspected of or engaged in activities hostile to the security of the States, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in favor of such individual person, be prejudicial to the security of such State." To be sure, Art. 31 of the Fourth Convention prohibits any "physical or moral coercion" of civilians "to obtain information from them," and there is a clear prohibition of torture, physical abuse, and denial of medical care, food, and shelter. Nonetheless, Art. 5 makes clear that if an Iraqi civilian who is not a member of the armed forces, has engaged in attacks on Coalition forces, the Geneva Convention permits the use of more coercive interrogation approaches to prevent future attacks.
This is the same line of argument pursued by General Sanchez's legal staff in its
correspondence with the ICRC concerning the abuse at Abu Ghraib. Mr. Yoo interprets the phrasing "not be entitled to claim such rights and privileges under the Convention" to mean it is permissible to subject civilian detainees to "coercive interrogation". To say the least, this is a very controversial and convenient interpretation
(1). This is an effort to exploit a loophole in the Fourth Geneva Convention and claim the legality of at least some of the aggressive interrogation techniques used at Abu Ghraib.
Mr. Yoo favors using coercive interrogation techniques on civilians as long as they are not physically or morally coercive. The US Army's list of coercive techniques - those recently banned in Iraq -- suggests that at a minimum Mr Yoo favors the use of stress positions, sleep deprivation and dietary manipulation. As evidenced by recent banning of these techniques, coercive interrogation of civilians was not an insignificant change in US military doctrine. Assuming we grant Mr Yoo that these techniques are legal, a case for their use requires more than merely asserting they will yield valuable information. Does coercive interrogation actually yield information? What are the costs of these techniques to US military culture, to the coerced civilians and to the US's moral standing?
A response to criminal action by individual soldiers should begin with the military justice system, rather than efforts to impose a one-size-fits-all policy to cover both Iraqi saboteurs and al Qaeda operatives. That is because the conflict with al Qaeda is not governed by the Geneva Conventions, which applies only to international conflicts between states that have signed them. Al Qaeda is not a nation-state, and its members -- as they demonstrated so horrifically on Sept. 11, 2001 -- violate the very core principle of the laws of war by targeting innocent civilians for destruction. While Taliban fighters had an initial claim to protection under the Conventions (since Afghanistan signed the treaties), they lost POW status by failing to obey the standards of conduct for legal combatants: wearing uniforms, a responsible command structure, and obeying the laws of war.
As a result, interrogations of detainees captured in the war on terrorism are not regulated under Geneva. This is not to condone torture, which is still prohibited by the Torture Convention and federal criminal law. Nonetheless, Congress's definition of torture in those laws -- the infliction of severe mental or physical pain -- leaves room for interrogation methods that go beyond polite conversation. Under the Geneva Convention, for example, a POW is required only to provide name, rank, and serial number and cannot receive any benefits for cooperating.
The Taliban fighters never lost their claim to protection. It was taken from them when the US in violation of the Third Geneva Convention arbitrarily asserted they had no claim to POW status. The Convention explicitly calls for a competent tribunal to determine who is entitled to POW status. This is not a trivial issue. Many innocent people are no doubt incarcerated at US facilities because Bush was unwilling to adhere to the US's treaty obligations and have a tribunal consider the individual cases of detainees.
But Yoo goes a giant step further here. He claims the Taliban fighters have no status at all under the convention. The International Committee of the Red Cross (page 50) , US Army doctrine and many international legal groups hold that every detainee has status under one of the four Conventions. If a detainee doesn't qualify for status under I, II or III then by definition they have status under IV. It is a huge distortion to imply losing POW status equates to losing all protection under the conventions. Without status under the Fourth Geneva Convention, al Qaeda and Taliban detainees are without legal recourse to challenge their detention and significantly more prone to abuse while detained. If a robust international legal framework existed, Mr Bush and his legal enablers might well find themselves in legal jeopardy.
The reasons to deny Geneva status to terrorists extend beyond pure legal obligation. The primary enforcer of the laws of war has been reciprocal treatment: We obey the Geneva Conventions because our opponent does the same with American POWs. That is impossible with al Qaeda. It has never demonstrated any desire to provide humane treatment to captured Americans. If anything, the murders of Nicholas Berg and Daniel Pearl declare al Qaeda's intentions to kill even innocent civilian prisoners. Without territory, it does not even have the resources to provide detention facilities for prisoners, even if it were interested in holding captured POWs.
To claim that lack of reciprocity from Al Qaeda is grounds for the US to side-step the Convention, is fear-mongering nonsense. To contain Al Qaeda, the US needs assistance from the rest of the world. Relaxing detainee protections and adopting policies that allow detainee abuse and perhaps even torture, lowers the US to the level of Al Qaeda in the eyes of the world and lessens US's moral standing. Any perceived short-term benefits of unilateral US anti-terror policies need to be weighted against the long-term damage they cause to long-standing international institutions.
It is also worth asking whether the strict limitations of Geneva make sense in a war against terrorists. Al Qaeda operates by launching surprise attacks on civilian targets with the goal of massive casualties. Our only means for preventing future attacks, which could use WMDs, is by acquiring information that allows for pre-emptive action. Once the attacks occur, as we learned on Sept. 11, it is too late. It makes little sense to deprive ourselves of an important, and legal, means to detect and prevent terrorist attacks while we are still in the middle of a fight to the death with al Qaeda. Applying different standards to al Qaeda does not abandon Geneva, but only recognizes that the U.S. faces a stateless enemy never contemplated by the Conventions. This means that the U.S. can pursue different interrogation policies in each location. (Guantanamo and Iraq) ....
Surprise attacks aren't exclusive to terrorism. Throughout the history of war thousands of lives could have been saved if POW's had spilled secrets. Yet despite the potential benefits of coercing POW's to talk, the laws of war evolved to protect POW's from abusive interrogations and torture. By arguing that somehow everything is different with Al Qaeda, Mr. Yoo betrays the essential weakness of his analysis. In the event of conflicts between states - like Afghanistan or Iraq -- the Geneva Conventions comprehensively address how detainees -- including any Al Qaeda members swept up in the conflict -- should be treated. Absent state conflict, Al Qaeda members fall under the laws of each state where they are detained. Al Qaeda is not the first international terrorist conspiracy to confront the world's legal system even though this administration seems to think it is.
In this editorial, Mr Yoo scrambles to defend his Justice Department legal hacksmanship in an environment he never anticipated. Under the guise of touting the virtues of different policies in Iraq and Guantanamo, he tries to wall off Guantanamo from the scandal in Iraq. Unfortunately for Mr. Yoo, the legal foundation he built for US policies in Guantanamo is even shakier than that which
gave rise to the torture in Iraq.
Notes:
(1) There are at least two problems with Mr. Yoo's interpretation of Article 5 of the Fourth Convention.
First, he argues that it allows coercive interrogation of civilians who" is definitely suspected of or engaged in activities hostile to the security of the State". The relevant paragraph of article five reads:
Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
The New York Times offers the following interpretation of the class of detainees referenced in the above paragraph of article five:
An authority on the laws of war, Prof. Scott L. Silliman of Duke University, said that the assertions in the military's letter were highly questionable and that the military lawyers who drafted it may have misconstrued the law.
The category in which prisoners may be excluded from the protections of the Geneva Conventions that the letter cites, Professor Silliman said, are for people who can be shown to be a continuing threat to the occupying force, not people who might have valuable intelligence.
"They may be high value assets but that does not necessarily make them security risks," he said. The provision cited in the letter provides that the protections could be suspended for people suspected of "activities hostile to the security" of a warring state or an occupying power.
Somewhere a line needed to drawn between detainees who might be privy to plans for future attacks and detainees who merely had general information helpful to the US occupation. There is
no convincing evidence Abu Ghraib detainees were screened with consideration of their Geneva Convention rights.
Yoo also selectively interprets which articles of the Fourth Convention would still apply to detainees for whom the Article 5 exception was invoked. To try to inoculate his argument against the charge that invoking the exception would open detainees to abuse, he claims that Article 31 of the Fourth Convention would continue to protect detainees from moral and physical coercion. But if Article 31 still applies then all articles in Part III of the Fourth Convention should apply too. These articles bar not just moral and physical coercion but "all measures of intimidation". With intimidating practices precluded, it's unclear anything would remain in Mr. Yoo's kit bag of coercive interrogation techniques. Mr. Yoo continues a Bush administration habit of picking and choosing only those parts of the conventions that serve their interest.