TO DATE, THE BUSH administration's handling of the war has been superb. Its handling of the law of war has not. From the president's November 13 Military Order--calling for trial by military commission of certain non-citizens accused of terrorist activities--to the current dispute over the legal status of detainees at Guantanamo, the administration has drawn sustained criticism from civil rights and humanitarian organizations for its handling, proposed or actual, of those caught in the terrorist net the U.S. military has so effectively spread.
There is a sense in which humanitarian and civil rights groups exist in order not to be satisfied. And the administration's supporters, of whom there are many, have risen to denounce the attackers. But while the ACLU and Human Rights Watch are never going to be friends of the Bush team, their animus doesn't automatically make their legal arguments specious. As it happens, the administration has made a telling moral and political argument that the al Qaeda and Taliban detainees in Cuba are receiving the treatment they deserve. But legally, while it may have a plausible argument, the administration hasn't bothered to make it.
What does the Justice Department have to say about the detainees and their status under U.S. treaty law and so-called customary international law? Justice's Office of Legal Counsel is in charge of providing authoritative answers to the U.S. government on legal questions. A department spokesman told me OLC has opined on the matter, but the department refuses to release the memorandum or discuss its contents. To be sure, many OLC memoranda never get published. But the last one posted on the Justice Department website on any subject is from September 2000, i.e., during the Clinton administration. And the question of the legal status of the detainees is, after all, a matter of some public interest. Why the secrecy? Law isn't spycraft.
The essential substantive question is whether the detainees in Cuba merit the status of "prisoners of war" under the provisions of the third Geneva Convention of 1949. The administration says absolutely not, there is no doubt whatsoever that they do not qualify for prisoner status and are, instead, "unlawful combatants." The certitude the administration has expressed is of critical importance, because in case of "any doubt," according to Article 5 of the convention, the detainees are entitled to a finding on the question by a "competent tribunal" as well as to be treated as POWs until that finding is made. The U.S. government isn't convening any such tribunals.
Whence comes the certitude? It's hard to know with, well, certainty, given the secrecy of the legal briefs, but comments by administration officials suggest that the detainees are members of organizations--al Qaeda and the Taliban--that the administration does not regard as armed forces for purposes of the treaty. Nor do they meet the Article 4 criteria for granting POW protections to members of militias and volunteer corps, namely: "(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war."
Commentators such as Lee A. Casey, David B. Rivkin Jr., and Darin R. Bartram, in a Federalist Society paper, argue that regular "armed forces," not just irregulars, must pass all four tests to qualify members for POW protections, and that on the basis of evidence from the public record, neither al Qaeda nor Taliban fighters meet any, let alone all, of these four conditions. Therefore, all members of the two organizations are "unlawful combatants" and can be designated as such simply on the strength of a declaration by a relevant executive branch official. Al Qaeda and the Taliban are outlaw organizations that do not follow the "laws and customs of war," so their members are not protected.
It's a plausible argument, but hardly conclusive. As Kenneth Anderson writes in a forthcoming edition of the Harvard Journal of Law and Public Policy devoted to international law and the war, this view "is not persuasive principally for the reason that . . . by any understanding of the international law of war, the United States has and continues to be engaged in armed conflict. It is using its full military machinery to wage war." Under customary international law, the Taliban, at least, are arguably the armed forces of Afghanistan (even if we do not recognize the government) whether they meet the four criteria or not. Why would the Taliban wear "a fixed distinctive sign" if local forces allied with the United States in the conflict (the Northern Alliance) did not? And would the U.S. government really have been satisfied with the designation of its own Special Forces, riding incognito with the Northern Alliance, as unlawful combatants?
The apparent government position is that all local resistance to the U.S. war effort was in principle unlawful. You can take that view. But in previous conflicts, the United States has not. Current military regulations create a presumption of protected status: "All persons taken into custody by U.S. forces will be provided with the protections of the [third Geneva Convention] until some other legal status is determined by competent authority."
It is certainly plausible that a "competent authority" such as the secretary of defense or the president has made a blanket determination that the status of "all persons" is different in the present war. But doing so essentially means reading the Geneva Convention to include a very flexible and easily asserted opt-out provision, which renders inapplicable all the rest of its protections and procedures.
Does a war against terrorism, a new kind of war, justify or perhaps require such a view? Perhaps it does, but not for many of the reasons most often cited in the administration's defense. It is perfectly lawful under the convention, as Human Rights Watch points out, to question a prisoner of war, to give him privileges if he cooperates (though not to punish him for refusing to offer more than name, rank, and serial number), to prosecute him for war crimes or other crimes, and if convicted by an appropriate tribunal (operating, that is, under the same rules as apply to the members of the armed forces of the detaining power) to put him in prison for life or put him to death.
None of this is to suggest that all the detainees at Guantanamo should be deemed prisoners of war, or even any of them. It's perfectly reasonable to hold that al Qaeda members are unlawful combatants, on the grounds that the very purpose of the organization is to target civilians, among other war crimes. It's less obvious that all Taliban fighters are unlawful, though many of them might be. What is not obvious at all is that any of these conclusions, as applied to detainees in Cuba as well as those in U.S. custody elsewhere, are beyond "any doubt." The language of Article 5, moreover, calls for a hearing whenever there is "any doubt" that a detainee is a prisoner of war. This is plainly intended as a threshold protection for detainees, not as a mechanism by which the detaining power can assert that there is "no doubt" that the detainee is not a prisoner of war.
All of which suggests that either the detainees deserve a determination of their status by a "competent tribunal," as stated in Article 5, or else the Bush administration owes a competent legal argument for its conclusion to the contrary. So far, there is no public evidence it has one.
Contributing editor Tod Lindberg is a Hoover Institution fellow and editor of Policy Review.