TCS Daily

Prisoners, No Dilemma

By Michael Rosen - June 23, 2004 12:00 AM

The saga of John Yoo nicely illustrates the adage that no good deed goes unpunished. Yoo is a professor at the University of California at Berkeley's Boalt Hall School of Law who until now was little known outside the circles of legal academia. He has become the subject of intense criticism ever since Newsweek recently reported that in January 2002, while serving in the Justice Department, he authored a memorandum arguing that the protections of the Third Geneva Convention on prisoners of war need not be extended to Al Qaeda detainees. The memo eventually led to the Bush Administration's decision on February 7, 2002, to deny such protections to captured Al Qaeda members. While several commentators have assailed Yoo's views, his arguments stand up to scrutiny and offer a helpful way of fighting the war on terror, consistent with international law.

The memo's disclosure sparked outrage among many on the left, including a group of Boalt students who sponsored a petition demanding his resignation from the Berkeley faculty unless he "publicly and unequivocally repudiate[s]" his memo. According to the students, Yoo, by exploiting "technical ambiguities" in the Geneva Convention, helped foster a "climate of disdain" for international law, an environment, the petition breathlessly asserts, that has incubated acts of torture and murder by U.S. armed forces (Yoo has specifically stated that POW status does apply to captured Iraqi fighters, including those mistreated at the Abu Ghraib prison). Predictably, the petition, which has attracted attention around the world, bred a counter-petition defending Prof. Yoo on academic freedom grounds. For their part, the anti-Yoo petition sponsors disingenuously aver that their assault on Yoo's official actions while in the Justice Department does not "constitute an attack on academic freedom." In mid-June, signatures were running about 3-2 in favor of the anti-Yoo petition.

Leaving aside the self-importance and futility of the petition argument -- Yoo has said that the odds of his resigning are equal to "the odds of a Berkeley student flunking out, which are about zero" -- what are the merits of his arguments? Is it possible that, under international law, certain combatants captured on the field of battle are not entitled to protections as POW's? In fact, Yoo's position can and should be defended within the (often too-friendly) confines of international law.

It is important, first of all, to sound a note of caution regarding the context of Yoo's memo, which he authored while employed at the Justice Department's Office of Legal Counsel. His conclusions represent a scrupulous analysis of international law, not a prescriptive policy recommendation as to how the administration should treat detainees. Both the State and Defense Departments also offered their views on the issue regarding the diplomatic and military consequences of the decision, disparate viewpoints that were fused into a balanced policy that denied Qaeda detainees formal POW status but guaranteed that they would nevertheless be treated "consistently with the general principles" of the Third Geneva Convention.

Yoo's legal arguments first and foremost reflect possibly the most critical imperative in the international law of war: drawing a clear distinction between combatants and civilians. The Geneva Conventions are dedicated to reinforcing this sharp line, a distinction that terrorist groups like Al Qaeda have systematically attempted to blur but to which the international community must doggedly adhere.

Specifically, the fifty-year-old Third Geneva Convention Relative to the Treatment of Prisoners of War offers captured prisoners of war important protections, including humane treatment, the right to group -- as opposed to solitary -- confinement, and freedom from interrogation or mental coercion. Yet under Article 4, these protections apply only to members of "the armed forces of a Party to the conflict," members of "regular armed forces who profess allegiance to a government" not recognized by the detaining authority, or members of militias or other organized groups meeting four conditions: (a) being commanded by a person responsible for his subordinates; (b) having a fixed distinctive sign recognizable at a distance; (c) carrying arms openly; and (d) conducting their operations in accordance with the laws and customs of war.

Last things first: some commentators have argued that Al Qaeda members satisfy the four conditions of militia membership. They argue that despite the tendency of terror groups to operate in small, atomized cells, the "success" of several large-scale operations is evidence of an effective command structure. Yet whatever inspiration Osama bin Laden may provide to Al Qaeda, he neither personally commands Qaeda cells nor bears operational (as opposed to moral) responsibility for its members.

Most critics concede that Qaeda members do not wear fixed, distinctive uniforms as required by the Third Convention. Instead, they point to the First Additional Protocol to the Convention, which entered into force in 1978 without the ratification of the United States. Under that protocol, the requirement of distinctive symbols is relaxed, so long as fighters carry their arms openly during and immediately prior to military engagement. While Qaeda fighters may or may not have met these standards during the Afghan War, they most certainly do not carry arms openly while engaged in terror operations (consider the concealed box-cutters on Flight 11). More to the point, the United States emphatically rejected this protocol precisely because it elided the critical distinction between civilians and combatants. As the late President Reagan boldly stated, the protocol would "endanger civilians among whom terrorists and other irregulars attempt to conceal themselves...[W]e must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law."

If Qaeda members neither fall under the command by a person with operational responsibility, nor wear fixed distinctive uniforms, nor carry arms openly, they certainly do not conduct their operations according to the laws and customs of war. Some scholars have read this final requirement narrowly as demanding adherence to the laws of war only at the very moment the fighters are captured. Even if correct, this interpretation would protect only Qaeda fighters captured during the Afghan War and not the scores of detainees found elsewhere. More importantly, this narrow understanding unduly confines the definition of "operations" and respect for laws of war -- in particular the injunction against deliberate attacks on civilians that Al Qaeda has violated in virtually all of its attacks. Yet others have argued that even if some members of Al Qaeda have violated the rules of war, the United States shouldn't deny POW status to all members. But unlike, say, the Viet Cong or the North Vietnamese Army, Al Qaeda has publicly repudiated in word and deed the laws of armed conflict, at least with respect to distinguishing combatants from civilians. Extending Geneva protections to Qaeda detainees out of generosity is neither legally required nor particularly logical.

Thus it is relatively, if not indisputably, clear that Al Qaeda fighters do not qualify for POW status as militia members. Yet some commentators contend that because Al Qaeda members fought alongside Taliban units in the Afghan War, they should be considered members of the armed forces of a party to the conflict, or members of regular armed forces who bear allegiance to an unrecognized government, and therefore need not satisfy the four conditions listed above (whether or not these other categories of combatants must meet the four requirements is itself a matter of debate). But while both alternatives have surface appeal, they misrepresent reality. Even if some Qaeda units fought with the Taliban in Afghanistan, and even if Taliban fighters themselves deserved POW status -- a matter of some controversy -- Qaeda members captured elsewhere would not qualify as members of an armed force. Furthermore, Al Qaeda is a non-state actor and therefore lacks "personality" under international law; the group has not ratified the Geneva Convention, nor could it if it so desired. And unlike the Taliban, Al Qaeda does not give allegiance to, nor does it purport to be, a government, recognized or unrecognized. If anything, Al Qaeda aspires to install a global Islamic caliphate, a supranational actor outside the international legal framework.

Yoo's argument that Qaeda detainees fall outside of the protections of the Geneva Convention thus withstands the criticisms that many have leveled against it. To be sure, a balance must be struck between providing basic humanitarian treatment on one hand and extracting critical information from detainees and preventing them from collaborating in future endeavors on the other. But as a matter of international law, John Yoo's interpretation is fundamentally sound, even if Boalt Hall activists may disagree.

Michael M. Rosen, a recent graduate of Harvard Law School, is an attorney in San Diego.


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