TCS Daily

Bush's Geneva Turn

By Andrew Apostolou - August 2, 2006 12:00 AM

The Pentagon decision on July 7, 2006 to adopt a key article of the four Geneva Conventions for Guantanamo Bay detainees is an important step -- but perhaps not for the reasons one would expect. For one, the order points to the best way out of our current legal morass: by fully embracing the Third Geneva Convention relative to the Treatment of Prisoners of War of 1949, the United States can bring prisoners to justice without granting them the status of POWs. Such an approach can keep the Supreme Court content, by applying accepted procedures; can fit with the Bush Administration's judicial conservatism, by avoiding needless innovation; and will outflank so-called human rights activists who fancy themselves as defenders of the Geneva Conventions.

Moreover, under Geneva rules, the United States can legitimately intern captives without trial for as long as the al-Qaeda terrorists and their Taliban allies keep the conflict going. Unlike Human Rights Watch, that called for Taliban prisoners to be freed three years ago, the Third Geneva Convention only demands release and repatriation "after the cessation of active hostilities." As the Taliban are still fighting, the United States can now hold its prisoners for the duration, no questions asked.

Adopting the Third Geneva Convention will oblige Bush Administration lawyers to tear down the ill-advised 'Gitmo Law' established over the past four years. The American desire to prevent terrorists from exploiting the laws of war to legitimize their crimes was entirely reasonable -- the war against terrorism does not easily fit existing definitions of war. But it has failed, and Gitmo Law did not make the United States more secure. Quite the contrary, it has been legally dubious and diplomatically indefensible.

Gitmo Law's two most dangerous innovations have been the policy of early releases, formalized under the Administrative Review Board in May 2004, and the overly elaborate detainee status hearings, the Combatant Status Review Tribunal created in response to the Supreme Court's rulings in Hamdi and Rasul in June 2004. Both mechanisms paradoxically grant terrorist detainees rights and privileges that POWs do not enjoy.

The early release policy, a response to diplomatic pressure meted out by Pakistan and Saudi Arabia, has allowed dangerous terrorists to return to the battlefield. Abdullah Mehsud, a veteran jihadist who left Guantanamo in March 2004, boasted to Pakistani journalists that he had fooled the Americans into releasing him. The Pakistani Army killed Mehsud on the battlefield in March 2006. Another beneficiary of early release was Maulvi Ghafar -- released from Guantanamo in February 2004, killed by Afghan forces September 2004.

Thanks to the ARB, each Guantanamo detainee now has the right once a year to apply for release. In preparing his case, each detainee has an Assisting Military Officer at his disposal.

Because of the ARB, the United States has forfeited a basic tool of war available under the Third Geneva Convention -- the right to hold enemy prisoners throughout hostilities. The point of capturing enemy personnel is to diminish the size of an enemy force. Speaking on December 20, 2004, then-Secretary of the Navy Gordon England admitted that "the Administrative Review Board is purely voluntary. That is, there's no Geneva requirement, there's no precedent for this type of process."

The Combatant Status Review Tribunal (CSRT) is even more indulgent of terrorist detainees. The tribunal consists of three officers, at least one of whom must be a member of the U.S. military's legal service, the Judge Advocate General (JAG) Corps. Here too, when facing the CSRT detainees benefit from the assistance of a personal representative, this time with access to their Pentagon files.

As Gordon England conceded on December 20, 2004 the CSRT has "actually gone beyond" the Third Geneva Conventions. Indeed, the Third Geneva Convention foresees a simpler procedure for determining whether a detainee is a POW: a hearing before a "competent tribunal." U.S. Army Regulation 190-8 defines a "competent tribunal" as three commissioned officers, one of whom must be of field grade and another is preferably, but not necessarily, a JAG. Detainees facing a "competent tribunal" do not receive the privilege of representation, and by no stretch of the imagination do Guantanamo detainees meet the already elastic Geneva rules regarding POW classification. In addition, a "competent tribunal" is swift and simple to conduct -- U.S. forces held 1,196 such hearings for Iraqi detainees in 1991.

Not only has the United States given terrorist detainees too many rights, it has also passed up an opportunity to hold them legally to account, thus damaging its own reputation. By adopting the Third Geneva Convention, the United States can prosecute terrorists simply for being "unlawful combatants." By fighting without uniforms or insignias, with concealed weapons, and contrary to the rules of war, the terrorists blur the distinction between combatants and non-combatants, thereby endangering civilians. Adam Roberts, professor of international relations at Oxford University, has written that unlawful combatants "can face penal sanctions for participating directly in hostilities and for other acts they may commit."

The Bush Administration's well-intentioned error can be corrected by using the Geneva rules and processes. Properly applied, they are a powerful tool for the war against terrorism -- and no friend of the terrorists.

Andrew Apostolou writes on the Middle East and has interviewed prisoners from an al-Qaeda affiliate group in Iraq.


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