War by Other Means: An Insider's Account of the War on Terror

by John Yoo

  Looking back, I would put Europe's criticism of the United States' position on the Geneva Conventions down to old-fashioned rational, but short-term, self-interest. It is no secret that some European countries, particularly France, wish to restore the balance-of-power system that prevailed before World War II. Criticizing the United States for its terrorism policies inflicts political costs on us, seeks to unify world opinion under European leadership, and attempts to turn other nations against American policy. Meanwhile, these nations benefit from our fight against al Qaeda, just as they did during our struggle against the Soviet Union. Some European allies make significant contributions to the war on terrorism, but the U.S. carries by far the greatest burden. France, Germany, and other European nations have large immigrant Muslim populations which have not assimilated--witness the 2005 riots in France and the location of the operational leaders of the 9/11 attacks in Hamburg, Germany. They do not want to provoke their Muslim communities by pursuing an openly tough terrorism policy.

  Our January 2002 memo represented an effort at consensus. On our flight to Gitmo, I sat next to Taft and sought to make clear that the President could choose to leave aside the failed state theory. He could decide instead that the Geneva Conventions would apply to Afghanistan, but that members of the Taliban could lose their POW status if they failed to obey Geneva's requirements for an armed force. State wanted to hold thousands of informal hearings in the field for captured Taliban fighters. OLC maintained that the President could decide whether the Taliban militia as a group met Geneva requirements based on his constitutional authority to interpret treaties. The President could decide, if he chose, that Geneva's rules would apply as a matter of policy, including common article 3's guarantee of basic humane treatment of detainees.

  A few weeks after the Gitmo trip, the lawyers met again in the White House situation room, a surprisingly small but ultrasecure room in the basement of the West Wing (one can even see photos of it on the White House Web site), to finally resolve the issues for presidential decision. If Geneva Convention rules were applied, some believed they would interfere with our ability to apprehend or interrogate al Qaeda leaders. We would be able to ask Osama bin Laden loud questions, and nothing more. Geneva bars "any form of coercion" and POWs "may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind." This is more restrictive than domestic criminal procedures used in American police stations, where every day police officers get into suspects' faces and try to cut plea bargains in exchange for cooperation. Geneva's rules were designed for mass armies, not conspirators, terrorists, or spies.

  Consensus eluded the group. Gonzales had the unenviable task of summarizing the different positions for President Bush and attempting to forge a consensus. On January 18, 2002, the President decided that neither al Qaeda nor Taliban fighters would receive POW status under the Geneva Conventions. According to a leaked State Department memo, Secretary of State Colin Powell asked President Bush to reconsider this decision. Powell wanted not just the Taliban covered, but al Qaeda too.

  With al Qaeda we face a dangerous network of conspirators who can inflict mass casualties. Preemptive attacks or arrests based on intelligence are our most important tool. This became the central issue as the President reconsidered. According to a leaked draft of a memo to the President dated January 25, 2002, Gonzales took the position that the nature of the al Qaeda threat rendered "obsolete Geneva's strict limitations on [the] questioning of enemy prisoners, in addition to its requirements that captured fighters receive commissary privileges, pay, athletic uniforms, and scientific instruments."28 Why? According to the leaked draft the United States must be able "to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians." Applying different standards to al Qaeda does not abandon Geneva, but only recognizes that Geneva does not reach an armed conflict against a stateless enemy able to fight an international conflict.

  Gonzales's leaked draft summarized the policy considerations raised by different agencies. In our conflict with al Qaeda, information was our primary weapon against future attack: it made no sense to follow Geneva when the need for intelligence is so great. Finding Geneva did not apply would also effectively eliminate any threat of domestic prosecution under the War Crimes Act, which might impose an unwise and unnecessary straitjacket on U.S. troops in a war whose "circumstances and needs" were unpredictable. The memorandum emphasized that "the war against terrorism is a new kind of war," not "the traditional clash between nations adhering to the laws of war."

  Gonzales has been caricatured as calling the Geneva Conventions "obsolete" or "quaint." This plucks words out of context and misrepresents the leaked draft. Its argument was that Geneva did not apply as a matter of law, and that it was far more important as a matter of policy not to fatally hamstring intelligence-gathering by imposing a legal process never meant for the case, even if diplomacy would seem to counsel otherwise. Appearances and the massaging of international sensibilities could wait.

  Gonzales's draft presented Colin Powell's objections. The United States had consistently applied the Conventions in previous conflicts, even when the law did not require it. Refusing to apply Geneva would weaken the United States' future ability to demand POW treatment for captured Americans. Our allies and some domestic groups would condemn the decision. Failing to apply Geneva "could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries." It was a good argument, and from precisely the person--the secretary of state--who must be concerned with world opinion.

  Gonzales's draft memo recommended that the President find that neither al Qaeda nor the Taliban were covered by Geneva. It observed that in past conflicts, the United States had found the Conventions did not apply legally. This would be particularly appropriate in regard to "terrorists, or with irregular forces, like the Taliban, who are armed militants that oppressed and terrorized the people of Afghanistan." It also argued that as a matter of policy the United States should still provide captured enemy combatants with humane treatment, which would provide a minimum standard for interrogation or any other detention conditions. Military regulations governing detainees would still apply, but the draft memo pointed out "our adversaries in several recent conflicts have not been deterred by [the Geneva Convention on prisoners of war] in their mistreatment of captured U.S. personnel, and terrorists will not follow [Geneva Convention] rules in any event." Any concerns about a decline in military discipline were cured by President Bush's order that the detainees be treated humanely. Gonzales's memo conceded that other nations would criticize our decision, and might even withhold cooperation, but said it was important to apply international law only where it was actually binding.

  Gonzales's description of the policy pros and cons neatly summed up the choice before the President. It answered the primary objection of those who argued that the military ought to continue to follow the Geneva Conventions because otherwise other nations would abuse our captured soldiers. Would U.S. refusal to provide POW status to al Qaeda and the Taliban influence the conduct of a future opponent? Who knew? In a future conflict, say over Taiwan, China might violate the Geneva Conventions, citing America's previous refusal to apply them to al Qaeda. Such prediction is inherently uncertain, however, and if one were going to decide based on the past, China has not been a stickler for Geneva Convention rules anyway. It seems safer to predict that in deciding POW policy, China's primary interest would be in the treatment of Chinese prisoners, not the treatment of al Qaeda prisoners from a previous war that never involved China. Suffice it to say that citing precedents about the enemy's treatment of other nations' prisoners in other wars wouldn't drive America's POW policies, much less China's or any other hypothetical adversary's.

  According to yet another leaked memo, Powell responded the next day. Powell's leaked memo conceded that a
l Qaeda were not POWs, and that the Taliban individually or as a group might also lose their entitlement to that status.29 To Powell, the important question was that the United States publicly declare that the Geneva Conventions applied to the war in Afghanistan. His memo argued that following Geneva would permit the same "practical flexibility in how we treat detainees including with respect to interrogation and length of the detention," while the cost of the opposite policy would generate "negative international reaction," "undermine public support among critical allies," and lead to legal challenges in U.S., foreign, and international courts. Following the Conventions, Powell's memo maintained, "presents a positive international posture, preserves U.S. credibility and moral authority by taking the high ground, and puts us in a better position to demand and receive international support." Publicly declaring support for the Conventions "maintains POW status for U.S. forces," and "generally supports the U.S. objective of ensuring its forces are accorded protection under the Conventions." According to this leaked memo, State had decided to cut its losses, but still hoped to maintain the application of the Geneva Conventions, in theory, to Afghanistan.

  In a letter to the President on February 1, 2002, John Ashcroft weighed in. While Ashcroft usually worked from documents prepared by staff, as every cabinet member must do in the interests of efficiency, he wrote this one personally. If the President determines that Afghanistan is a failed state, Ashcroft observed, "various legal risks of liability, litigation, and criminal prosecution are minimized."30 This finding would provide "the highest assurance" under domestic law that no American military, intelligence, or law enforcement officer would later be prosecuted for violating Geneva rules because the President's decision that the treaty was not in force would be conclusive. Ashcroft also thought it unlikely that the failed state option would come back to haunt the United States in a future war because "it would be far more difficult for a nation to argue falsely that America was a 'failed state' than to argue falsely that American forces had, in some way, forfeited their right to protections by becoming unlawful combatants." He pointed to the North Vietnamese abuse of American pilots as an example of the latter.

  On February 7, 2002, President Bush decided to follow OLC's legal advice, but to go with Powell's policy. In a memo to Cheney, Powell, Rumsfeld, Ashcroft, Andrew Card, George Tenet, Condoleezza Rice, and General Richard Myers, President Bush said that the Geneva Conventions only applied to conflicts involving states fighting with regular armed forces. "However," he wrote, "the war on terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific crimes against innocent civilians, sometimes with the direct support of states."31 Bush had accepted OLC's legal conclusion that the Geneva Conventions did not apply to al Qaeda, which was neither a state nor a party to the treaties. He also accepted that he could suspend the Conventions with regard to Afghanistan, but decided not to. Instead, he found that the Taliban were "unlawful combatants" who had lost their POW status. President Bush also found that common article 3 applied only to an "armed conflict not of an international character," and hence neither to the war with al Qaeda nor to the Taliban.

  A legal finding that the Geneva Conventions did not apply to al Qaeda, and that the Taliban had lost their POW status, did not answer the question of policy--what standards of treatment to provide. On the one hand, treating the detainees as unlawful combatants would increase flexibility in detention and interrogation, potentially yielding actionable intelligence that could prevent future terrorist attacks and locate al Qaeda personnel and assets. On the other hand, appearing to depart from the Geneva Convention standards could cause negative responses from our allies, international criticism, and a decline in military discipline. President Bush ordered that "as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." He wrote: "Our values as a Nation, values that we share with many nations of the world, call for us to treat detainees humanely," and this principle applied whether legally required or not. President Bush also said that the United States "has been and will be a strong supporter of Geneva and its principles."

  President Bush chose the right policy, one that provided the United States with flexibility to develop the rules that should apply to the new enemy of global terrorism, but which, in treating the enemy humanely, maintained American values. The White House released a list of the conditions provided to the detainees, including adequate food, clothing, housing, shelter, medical care, and the right to practice their religion. I witnessed these humane standards myself at Gitmo. Detainees received clothing, regular meals, the means to practice their religion, housing, and exercise. Some detainees received the first modern medical and dental care of their lives. To be sure, conditions were not those of a hotel--detainees were kept in cells, initially constructed of chain fence until more permanent facilities could be built, and they were guarded 24/7 by marines on patrol and from watchtowers. U.S. armed forces were ordered to treat the al Qaeda and Taliban humanely, and they did so admirably.

  Human rights advocates and commentators have criticized Bush's policy decision. Some make an absolutist argument, raising the Geneva Conventions to a high principle.32 The Geneva Conventions, however, are treaties, and very detailed ones at that. They are not a moral code. Bush's order to treat the detainees humanely, regardless of what they had done to us, regardless of the civilians they had killed and the rules of warfare they had broken, arose from morality. What standards to use toward al Qaeda and Taliban detainees is a question of policy. It demands that we measure the costs and benefits of the policy against other alternatives.

  President Bush made his decision only five months after the September 11 attacks. All the available intelligence suggested that al Qaeda planned more strikes against the United States. One could argue that the costs to America's international reputation were greater than the immediate intelligence benefits. I do not think so; as various government leaders have acknowledged publicly, the intelligence gathered from captured al Qaeda and Taliban fighters allowed our intelligence, military, and law enforcement to frustrate plots that could have killed thousands of Americans.33 Al Qaeda clearly sought weapons of mass destruction capable of increasing the devastation it could inflict by an order of magnitude. What President would put America's image in the United Nations above the protection of thousands of innocent civilian lives?

  Far from radical, President Bush's decision drew on traditional rules of war. The customary laws of war have always recognized stateless fighters as illegal, unprivileged enemy combatants. This is a category that has existed for centuries. Pirates were the scourge of the oceans, and any nation could capture them; they were never owed the status reserved for legal combatants who obeyed the rules of civilized warfare. Justice Department opinions dating from the Civil War had distinguished between lawful combatants who wear a uniform, fight for a nation, and obey the rules of war, and "secret, but active participants, as spies, brigands, bushwhackers, jayhawkers, war rebels, and assassins."34 The latter were "banditti" who were "thoroughly desperate and perfectly lawless." "These banditti that spring up in time of war are respecters of no law, human or divine, of peace or of war; are hostes humani generis, and may be hunted down like wolves." This understanding continued to prevail during World War II, when the Supreme Court recognized in a saboteur case that unlawful combatants who had forsworn the laws of war did not enjoy those laws' protections.35 The Geneva Conventions mention neither illegal combatants nor any attempt to eliminate the concept. No one today is talking about hunting al Qaeda down like wolves, but a hardened operative who targets thousands of innocent civilians for death and disguises himself as a civilian is an unlawful combatant not due the protections given to honorable warriors.

  Perhaps the greatest achievement of the laws of war over the centuries has been to make clear that noncombatants are off-limits. Innoc
ent civilians cannot be deliberately targeted. Armed forces cannot use civilians as shields, they cannot deliberately conceal themselves in certain buildings, such as religious or medical facilities, and they must wear uniforms to clearly distinguish their status as combatants. Al Qaeda fights in covert, unconventional ways that play to its strengths and our weaknesses--which are also our strengths: our standards of honor and the protections of our legal system.

  When our group of lawyers visited Gitmo, the Marine general in charge told us that several of the detainees had arrived screaming that they wanted to kill guards or any other Americans. Many at Gitmo are not in a state of calm surrender. Open barracks for most are utterly impossible; some al Qaeda detainees want to kill not only guards, but their peers who might be cooperating with the United States. As recently as May 2006, prisoners with makeshift weapons attacked guards who had rushed to save a detainee who had faked a suicide.36 The provision of ordinary POW rights to these detainees, such as allowing them to cook their own food or conduct research, or to keep their own command structure, is infeasible.

  The Geneva Conventions make perfect sense when war involves states. They make a laudable distinction between civilians and uniformed combatants to protect civilians, permit detention of combatants to prevent them from returning to combat, and ensure a minimum level of humane treatment for ordinary foot soldiers, most of whom can be presumed, in a twentieth-century battlefield, to have little valuable information. Today the main threat to peace does not arise from the threat of conflict between large national armies, but from terrorist organizations and rogue nations that don't give Geneva or any other rules the time of day.

  Human rights advocates and liberal critics of the Bush administration's terrorism policies pretend that the rules of civilized warfare, including the Geneva Conventions, can safely address terrorism. September 11 proved them wrong. Before, the laws of war classified wars into those between states and internal civil wars. In the 1990s, the threat to global peace and security seemed to come from the latter more than the former. But the 9/11 attacks revealed a new kind of threat: a nonstate terrorist organization that wields the destructive power of a nation while ignoring the rules that guide nations. The candid approach would be to admit that our old laws and policies did not address this new enemy, and that we need to start developing a new set of rules to confront it, and soon.