Must the United States comply with the Geneva Conventions in fighting the global war on terrorism?

Are detainees captured in the global war on terrorism real POWs? Or are they illegitimate fighters who don’t merit POW status? The distinction has stirred debate when confronting the abuse of some prisoners. DoD legal advisor Brig. Gen. Thomas Hemingway, USAF, contends that applying POW status to al-Qaida and Taliban fighters actually weakens the protections of the Geneva Conventions. Rear Adm. John Hutson, USN-Ret., dean of the Franklin Pierce Law Center, asserts that the conventions must apply to all taken captive in the war on terrorism and that our nation is morally bound to obey them.

DoD’s viewpoint: Brig. Gen. Thomas Hemingway, USAF

Brig. Gen. Thomas L. Hemingway, USAF, is the legal advisor to the appointing authority in the DoD Office of Military Commissions. He entered active service in 1965, retired in 1996, and was recalled to active service in August 2003.

America is at war. If anyone thinks that the acts of terrorism committed against America on Sept. 11, 2001, were not acts of war, they need look only to the 1996 and 1998 declarations of war, or fatwa, by al-Qaida against America and its allies and to al-Qaida’s subsequent sustained, concerted, and hostile acts against America and its allies throughout the world, including Bali, England, Indonesia, Kenya, Saudi Arabia, Spain, Tanzania, Tunisia, and Yemen.

Congress reacted swiftly to the Sept. 11 attacks and authorized the president to use force against those responsible. Consistent with this authorization, the president detained at Guantanamo Bay (GTMO), Cuba, individuals threatening the security of America and the lives of innocent civilians. The Supreme Court has ruled that the president is authorized to detain individuals who engage in hostile acts against the United States until the end of hostilities to prevent them from returning to the battlefield. The court has noted that the detention of such individuals is not punitive, but rather is based on the compelling need to protect the nation’s security during times of armed conflict.

The armed forces also have a clear policy, consistent with a directive from the president, to treat al-Qaida and Taliban detainees humanely. This is true even though al-Qaida is an international terrorist group, not a state, and thus cannot be a signatory to the Geneva Conventions. This is true even though al-Qaida does not recognize the conventions or comply with the principles they embody. This is true even though al-Qaida conducts its operations in flagrant violation of the laws and customs of war, including by targeting innocent civilians. This is true even though Taliban fighters do not fit the definition of POWs under the Geneva Conventions because, for example, they fail to distinguish themselves from innocent civilians and to conduct their operations in accordance with the laws and customs of war. To go beyond this policy and conclude that al-Qaida and Taliban fighters are POWs bastardizes the Geneva Conventions and undermines the protections afforded to legitimate, state-sanctioned fighters. There is no incentive for fighters to adhere to rules of warfare if they are entitled to POW treatment under the Geneva Conventions regardless of whether they adhere to the conventions themselves or not. Nonetheless, it is the armed forces’ policy to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva. The current Army Field Manual reflects this policy and provides that all detainees shall be treated humanely.

After the Abu Ghraib scandal, some critics erroneously believed the United States was engaged in a conspiracy to violate the conventions by torturing detainees to elicit information about the enemy. The impression was that America was providing no protection to detainees. Nothing could be further from the truth. The United States is committed not only to complying with all of its constitutional, statutory, and treaty obligations that apply to treatment of detainees but also to investigating detainee abuse and punishing the culprits. Credible allegations of abuse have been investigated and individuals responsible for criminal acts have been disciplined, even though we know that the al-Qaida manual instructs “brothers” to make torture claims as a matter of course. Also, numerous investigations have been conducted to determine whether detention and interrogation tactics used at GTMO and elsewhere violated the Geneva Conventions or constituted criminal offenses. The findings are clear: At no time has DoD employed policies permitting, tolerating, or condoning torture of detainees.

The president has affirmed repeatedly the United States’ commitment to the worldwide elimination of torture: “America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment.”

The United States is at war against a determined and dangerous adversary. It is committed to ending this war, complying with all of its constitutional, statutory, and treaty obligations regarding the treatment of detainees, and investigating and punishing abuses of detainees. The United States is committed to providing fairness and justice to these detainees. Al-Qaida and the Taliban, on the other hand, seek to attack and destroy America by targeting innocent civilians while claiming the protections of the Geneva Conventions to which they are not entitled.

Another viewpoint: Rear Adm. John D. Hutson, USN-Ret.

Rear Adm. John D. Hutson completed a 28-year career in the Navy, retiring as a rear admiral after having served as Judge Advocate General of the Navy. He is president and dean of the Franklin Pierce Law Center in Concord, N.H.

The answer to “Must the United States comply with the Geneva Conventions in fighting the global war on terrorism?” is emphatically “yes.” The United States is not just a party to the treaty — it was the prime proponent of the Geneva Conventions in the aftermath of World War II. The conventions represent an international obligation we are not free to disregard. If we do disregard them, we do so at our peril. We become an international scofflaw deserving of the opprobrium of our allies and enemies alike.

That analysis both answers the question and begs it. There are at least two more subtle, but nevertheless important, levels of consideration. What legal obligations do the conventions provide? And, regardless of those legal obligations, what are the moral, diplomatic, military, and practical requirements?

Common article three of the conventions recognizes only two types of people: combatants and “other persons” (including POWs). Each carries with it certain obligations. For example, if civilians are found to be breaking the law by committing acts of terror, they can be prosecuted and punished. If combatants are found to be breaking the law, they are unlawful combatants, and they, too, can be prosecuted and punished. Nowhere in that regime does it say, or even imply, that by virtue of  having thereby lost the protective status of a POW does that person lose the protections of the Geneva Conventions. He simply loses the protections of being a POW. It does not mean he may be tortured or treated inhumanely or cruelly.

But even more important than the question of what the United States must do is the question of what the United States should do. Somewhat to my surprise, after being a lawyer for 33 years, these issues have caused me to experience an epiphany. I now realize that law is less important than I thought and lawyers more important. Clever lawyers can use legal sophistry to twist the law to make black seem white, wrong seem right. This is especially true when they are aided by the momentum of people’s fear and emotion.

For generations, the United States has stood tall in the international community in its support of the rule of law and human rights. Now, when put to the test in our own backyard, we falter. We have taken a giant step down the slippery slope from the high road toward the low road.
We can no longer credibly claim that the abuse we’ve seen [at Abu Ghraib; Guantanamo Bay, Cuba; and elsewhere] was the result of the misbehavior of “a few bad apples.” It was much too pervasive in terms of locations, number of events, units, and organizations involved. There was an underlying systemic reason: unclear guidance about the application of the Geneva Conventions. In speaking with scores of company and field grade officers who served in Iraq and Afghanistan, it is clear that confusion was rampant. I’ve watched them argue back and forth among themselves long after returning from the war zones about whether the Geneva Conventions applied and, if so, how.

In many ways, it is unfortunate the debate is resolved in the courts. The much more important decision should take place in Congress, in the Pentagon, in schools, and in coffee shops around the country. We lost our moral compass, we lost the diplomatic high ground, and significantly, we imperiled our troops — present and future. If we play fast and loose with the Geneva Conventions, other countries — our enemies — will too. For generations the United States has been more forward-deployed than all other nations combined. We have the most to lose. The conventions protect our troops, first and foremost. We must be able to argue they always apply, even when we know the enemy will ignore them. It will make it more difficult to form future coalitions if our potential partners believe we will pick and choose when we will feel bound by the conventions.

Finally, the literature and our experience all indicate that abuse is ineffective in gaining useful intelligence. Eventually, everyone will talk, but you have no idea of the reliability of what they tell you. The reality is the best method to gain usable intelligence is to break down the barriers between you and the captive, not reinforce them. This often takes patience and experience; it is more subtle than piling naked men up in a pyramid, but it actually works.

Yes, the Geneva Conventions apply. But even more important than the legal analysis are morality, diplomacy, and military practicality. If the Geneva Conventions didn’t exist, we should invent them.