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Terrorists Are Not POWs By: John Yoo and Glen Sulmasy
AEI.org | Thursday, August 10, 2006

In its decision in Hamdan v. Rumsfeld rejecting President Bush's military commissions for the trial of al-Qaeda terrorists, the Supreme Court made a number of missteps.

Justice John Stevens, writing for Justices David Souter, Ruth Bader Ginsburg, Stephen Breyer and the wandering Anthony Kennedy, evaded Congress' order that the court not decide any cases arising from the detention of enemy combatants at the Guantánamo Bay, Cuba, camp. They narrowed Congress' authorization for the president to use all necessary and appropriate force against those responsible for the Sept. 11 attacks. They overlooked centuries of American history in which presidents from George Washington to FDR used military commissions to try enemy combatants for war crimes. They essentially overruled the central lessons of three Supreme Court decisions from World War II upholding the use of military commissions.

But believe it or not, these are not the worst aspects of the court's decision. In an effort to interfere with the way the elected branches of our government have chosen to wage war against al-Qaeda, they interpreted a law recognizing military commissions to require the United States to follow what is known as “Common Article 3” of the Geneva Conventions. While limited only to military trials, Hamdan suggests the possibility that the courts will order the United States to apply Common Article 3 to other operations against jihadists who do not wear uniforms nor display any distinctive signs, systematically flout the laws of war, and are neither parties nor signatories to the Geneva Conventions. Hamdan has the potential to straight-jacket our armed forces well beyond the narrow issue of war crimes trials.

A stretch? You bet.

It is critical to clarify where Common Article 3 really applies and what it actually demands. Under the Geneva Conventions, prisoner of war status is reserved for captured soldiers in the regular armed forces of nations that have signed the treaties. POWs receive the gold standard of treatment: they cannot be placed in cells, they need only provide name, rank and serial number, and they are entitled to a great many privileges and benefits, such as retaining their uniform, unit structure and chain of command.

These rules have in mind the conflicts between the large conscript armies of World Wars I and II. It provides protections to those who follow the laws of wars: do not target civilians deliberately and restrict violence to combatants.

The major purpose of these provisions is to ensure, through treaty, that reciprocity be afforded to all nations and their armed forces once engaged in combat. Al-Qaeda did not exist at the time of the drafting of the Geneva Conventions, and affording such protections was never in the minds of the signatories--certainly not the United States. Al-Qaeda is not a nation state and could not be, nor will it ever be party to such treaties. It has no intention of following any of the laws of war. In fact, its primary tactics--targeting and killing civilians, taking hostages and executing prisoners--are designed specifically to violate any standards of civilized warfare.

Our conflict with al-Qaeda cannot trigger the general POW protections of the Geneva Conventions, because al-Qaeda is not a party to the treaties.

Common Article 3 applies to certain fighters who do not meet the standards for a POW. It sets minimum standards “in the case of armed conflict not of an international character.” Its inclusion in 1949 cured a major gap in the Geneva Conventions. The original conventions did not set rules for internal civil wars between a government and resistance or rebel groups. Common Article 3 extended minimum protections to detainees who were not fighting on behalf of the armed forces of another nation, but not those due to POWs. It requires, for example, that “persons taking no active part in the hostilities,” including the sick, wounded and captured, “be treated humanely.” They are to be protected against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”

The basic purpose of Common Article 3--humane treatment--is already the policy of the United States. But Common Article 3 also contains some ambiguous provisions. It prohibits “outrages upon personal dignity, in particular, humiliating and degrading treatment,” which it does not define. It only allows the use of a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” which it again leaves undefined.

An example from Hamdan itself illustrates how ambiguous these terms can be. Under the Pentagon's rules on the procedures for military commissions, a court may exclude the defendant from the courtroom if classified information is to be presented. His defense attorney may be present, but not the defendant. This makes a great deal of sense. We would not want al-Qaeda operatives directly learning the sources and methods used by American intelligence to track and capture them. Al-Qaeda has shown that it quickly adapts to outsmart our strategies and tactics. Does preventing an al-Qaeda defendant access to such information constitute a violation of “judicial guarantees that are recognized as indispensable by civilized peoples?”

The Supreme Court seemed to think so, but we believe many would agree that the military commission rule is a reasonable compromise that allows for the defendant's interests to be represented but without harming national security during an ongoing war.

Our conflict with al-Qaeda does not fit within the general Geneva Convention rules for wars between nation-states. Al-Qaeda terrorists are not legally eligible for the rights granted to POWs. But the war on terrorism does not fall within Common Article 3 either. The United States is not fighting an internal civil war. As Justice Clarence Thomas notes in his vigorous Hamdan dissent, the war against al-Qaeda and its supporters is clearly one of an “international character.” The battlefield reaches beyond Afghanistan and Iraq, to New York City, Washington, D.C., London, Bali and Madrid. The war that began with the attacks on the World Trade Center and the Pentagon on 9/11 is certainly nothing like the internal civil wars in the minds of Common Article 3's drafters in 1949. We are not fighting a liberation movement of Americans who want to overthrow the government. We are fighting something that lay completely outside the experience of those who wrote Geneva after World War II: an international terrorist organization with the power to inflict destruction on a par with the armed forces of a nation.

Hamdan also disregards the distinctions between lawful and illegal combatants. The enemy we now fight, and will fight for the foreseeable future, does not abide by the laws of war. Any incentive to follow the rules of civilized warfare is removed if they receive the same rights as those who scrupulously obey the Geneva Conventions. In applying Common Article 3 to the jihadists, we now equate illegal combatants to ordinary armed forces. By affording Geneva Convention protections to al-Qaeda, we would be legitimizing their form of warfare.

This is a dangerous path to follow. Al-Qaeda uses our laws and treaties against us while violating the same humane principles we hold dear. Al-Qaeda and those who hate the Western way of life are using our respect for the laws of war against our armed forces and are trying to open the door to claims of war crimes based on ambiguous terms. It is telling that the week after the decision was handed down, al-Qaeda in Iraq offered a video on an Islamist Web site of the two U.S. soldiers captured in Iraq--showing them beheaded and their chests cut wide open. Can we ever expect humane treatment and reciprocity from terrorists? Never.

In trying to force Common Article 3 onto a conflict that stretches beyond national borders--but with an international terrorist organization rather than a nation--the Supreme Court is trying to force a round peg into a square hole. We can have a legitimate debate on whether to update the Geneva Conventions to ensure humane principles are applied in conflicts with terrorist organizations such as al-Qaeda. But as it stands now, as a matter of both law and policy, such application to al-Qaeda only hurts the United States in its efforts to protect the nation against international terror--both now and in the foreseeable future.

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John Yoo formerly worked in the Justice Department's Office of Legal Counsel for George W. Bush and is currently a visiting scholar at American Enterprise Institute. Glen Sulmasy is a law professor at the U.S. Coast Guard Academy.

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