1. Douglas Jehl and Eric Schmitt, “Army's Report Faults General in Prison Abuse,” New York Times, August 27, 2004, online.
2. Hersh, Chain of Command, p. 56.
3. Independent Panel to Review DoD Detention Operations, Final Report, August, 2004, p. 9.
4. Jones and Fay, op. cit., p. 25.
5. Campbell Brown, “New Front in Iraq Detainee Abuse Scandal?” NBC News, May 20, 2004, online (http://www.msnbc.msn.com/id/5024068).
1. Ibid.
2. Jones and Fay, op. cit., p. 44.
3. Seth Hettena, “CIA Official and Ex-SEAL Give Differing Accounts of Prisoner Abuse at Court-Martial,” San Diego Union-Tribune, May 24, 2005, online.
4. Hersh, “The Gray Zone,” loc. cit.
5. Karpinski, loc. cit.
6. Reuters, January 13, 2005, online.
7. Criminal Complaint Against the United States Secretary of Defense Donald Rumsfeld et al., update, Center for Constitutional Rights, January 27, 2005. See Josh White, “U.S. Generals in Iraq Were Told of Abuse Early, Inquiry Finds,” Washington Post, December 1, 2004, p. A1.
1. Horton, loc. cit.
2. Ibid.
3. Ibid.
1. CBS News/Associated Press, loc. cit.
2. Horton, loc. cit.
3. Karpinski, loc. cit.; see Douglas Jehl and Neil A. Lewis, “U.S. Disputed Protected Status of Iraq Inmates,” New York Times, May 23, 2004, online.
4. David DeBatto, “Whitewashing Torture?” Salon.com, December 8, 2004.
1. Hersh, “The Gray Zone,” loc. cit.
2. Ibid.
3. United Press International, “Abu Ghraib General Says She's 'Scapegoat,'” Washington Times, May 13, 2005, online.
4. Hersh, “The Gray Zone,” loc. cit.
1. Rumsfeld's comments were made on NBC's Meet the Press and FOX News Sunday, respectively, on June 26, 2005, and quoted in an Associated Press wire syndicated in USA Today the same day (available online).
2. See also the testimony of Rear Adm. John Hutson, former Navy Judge Advocate General, included as a postscript to the present chapter.—Ed.
1. According to a Center for Constitutional Rights report, officials named in the complaint include Defense Secretary Donald Rumsfeld, Attorney General and former White House Counsel Alberto Gonzales, former CIA Director George Tenet, Under Secretary of Defense Stephen Cambone, Major General Geoffrey Miller, and Lieutenant General Ricardo Sanchez.
2. Some have opined that the German court quickly decided the January 31, 2005, appeal due to the planned attendance of Defense Secretary Rumsfeld at the Munich Conference on Security Policy, February 11–13, 2005. The fact that the filing comprised hundreds of pages of material makes it unlikely that it was reviewed with adequate thoroughness. See the report on the German court's decision from the CCR, “Center for Constitutional Rights Blasts Ruling of German Prosecutor Refusing to Hear War Crimes Case Against Rumsfeld,” February 10, 2005 (http://www.ccr-ny.org/v2/reports/report.asp?ObjID=b2SxCfTLl0&Content=518).
3. From the, January 28, 2005, report by Horton filed with the German Federal Prosecutor: “I am an attorney at law admitted to practice in the courts of the State of New York since 1982, and an adjunct professor of law at Columbia University in the City of New York, where I lecture in international law and international humanitarian law, and currently conduct the seminar on the treatment of detainees under international humanitarian law. I also chair the Committee on International Law of the Association of the Bar of the City of New York and have previously chaired two other committees. I am a former officer and current director of the International Law Association.”
4. See http://www.ccr-ny.org/v2/legal/september_11/docs/ScottHortonGermany013105.pdf.
1. Michael Ratner, “From Magna Carta to Abu Ghraib: Detention, Summary Trial, Disappearances and Torture in America,” the Clara Boudin Lecture at the City College of New York, spring 2005 (http://www.ccr-ny.org/v2/reports/report.asp?ObjID= FCYIOrS07g&Content=543).
2. Ibid.
1. Rear Adm. Hutson's detailed analysis of several of the administration's notorious torture and GC memos follows Col. Smith's piece as a postscript.—Ed.
2. See the essay by Joesph Margulies, Esq., on the legal effort to obtain due-process rights for the Guantánamo Bay detainees on pp. 443–463 of the present volume.—Ed.
1. “One Huge U.S. Jail,” The Guardian, March 19, 2005, online.
CHAPTER
31
postscript
A Voice in the Wilderness for the Rule of Law
………
Rear Adm. John Hutson, USN (ret.), J.D.
ON JANUARY 6, 2005, I testified before the United States Senate Committee on the Judiciary at the hearing for confirmation of Alberto Gonzales as Attorney General of the United States. Having dedicated most of my professional life to military service, it was not an insignificant event for me to testify in opposition to the confirmation of an administration nominee for high office. I did not do it lightly, because involved in the confirmation of the Bush administration's nominee for Attorney General are issues about which I feel very strongly.
In a very real way, this nomination presaged the next four years for this country because more than any other discipline, it is the Rule of Law that directs our future. The Attorney General of the United States should be the chief enforcer of that Rule of Law. My opposition to his nomination focused primarily on Judge Gonzales's January 25, 2002, memorandum, with a subject line which read, “DECISION RE APPLICATION OF THE GENEVA CONVENTION ON PRISONERS OF WAR TO THE
CONFLICT WITH AL QAEDA AND THE TALIBAN.”
One of the few things Judge Gonzales got right in this infamous memo is his statement that “[t]he Attorney General is charged by statute with interpreting the law for the Executive Branch. This interpretive authority extends to both domestic and international law.” Given the analysis that follows in that same memo, the fact that he has now been confirmed in that very position should be of great concern to us all. Perhaps more than any other cabinet officer, the Attorney General has cherished public responsibilities to the people, distinct from the role of legal or political advisor to any particular President.
In this memo, Judge Gonzales states that
this new paradigm [the war against terrorism] renders obsolete Geneva's strict limitation on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip …, athletic uniforms, and scientific instruments.
He further urges the President to disregard it because he argues that adherence would restrict the war effort and potentially create criminal liability for war crimes.
In addition, other legal analyses were drafted by administration officials which Judge Gonzales did not repudiate – at least not on the record – until his testimony on January 6, 2005. These memoranda defined torture very narrowly, the defenses to torture broadly, and gave the President carte blanche in prosecuting the war on terror.
I believe Judge Gonzales's January 25 memorandum was narrow minded, shallow and overly legalistic in its analysis, shortsighted in its implications, and altogether ill advised. Candidly, it was too clever by half, and frankly, just plain wrong. Wrong legally, morally, practically, and diplomatically. Moreover and importantly, it and the other memoranda it drew from and formed the basis for – the Bybee memorandum (January 22, 2002, from Assistant Attorney General Jay Bybee), the Yoo memorandum (August 1, 2002, from Deputy Assistant Attorney General John Yoo), and the legal analysis from the DoD Working Group (April 4, 2003) – when taken together, “set the conditions” for the horrific events that followed. They took the United States from the role we have held for generations on the world stage as the avatar for the Rule of Law and proponent of human rights to being just another nation trying to evade our legal obligations. I believe they place our troops and our citizens in even greater harm's way by lowering the bar on acceptable conduct and fueling bitterness and resentment
that encourages recruits to the enemy's cause. They weaken our coalition and remove long held limitations on the most destructive of all human endeavors – warfare.
The January 2002 memo from Judge Gonzales concludes that the Geneva Convention Relative to the Protection of Prisoners of War (GPW) does not apply to the conflict in Afghanistan against the Taliban and their partners, al-Qaeda, but in this it is also incorrect. Afghanistan is a party to the Convention. The United States fought the Taliban as the de facto government of Afghanistan, in control of 90% of the country, and its armed forces as the “regular armed forces” of a party to the Convention. Those facts entitled Taliban and al-Qaeda combatants from Afghanistan to a determination on a case-by-case basis of their status as prisoners of war. Moreover, any detainee not entitled to POW status is nevertheless entitled to basic humanitarian protections guaranteed by the Geneva Conventions and customary international law. This is the position taken by the State Department, but rejected by Judge Gonzales.
Judge Gonzales began his rationale for this erroneous position by stating that the “war against terror is a new kind of war.” That may be. But the war in Afghanistan was not new in any fundamental way. The Geneva Conventions could be applied to that war without any great difficulty, just as we applied them in Iraq and every war we have fought since World War II. They are all new kinds of wars at the time you fight them, with new enemies, new weapon systems, and new tactics and strategies.
The Conventions are designed to apply in all armed conflict and the immediate aftermath of armed conflict. They are designed to apply to combatants – persons taking direct part in hostilities and regular members of the armed forces. There simply is no case for concluding that the Geneva Conventions were obsolete regarding the war in Afghanistan. They formed the proper applicable law and concluding they did not was simply incorrect.
Although it may still be in our self-interest, it is difficult to apply the Geneva Conventions to a terrorist when he is not taking part in an armed conflict because the Conventions were not intended to apply to those settings. Criminal law is designed to apply to violent, unlawful acts outside the situation of intense inter-group armed hostilities, i.e. war. Fundamentally, Judge Gonzales's problems with the Geneva Conventions stem from his attempt to apply the wrong law to the problem of terrorism.
As he should have anticipated, but apparently didn't, his error was compounded as the war on terror expanded to Iraq and included American citizens as enemy combatants. Once he reduced his legal analysis to simply that the Geneva Conventions don't apply to terrorists without explaining what law, if any, does apply, he created a downward spiral of unruliness from which we have not yet pulled out.
His memo is slightly over three pages long. Almost one full page is devoted to listing and rationalizing his two reasons for concluding that the Conventions do not apply:
preserving flexibility, and
“substantially reduce[ing] the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. §2441).”
Then on less than one half page, 21 lines, Judge Gonzales listed seven reasons why the Conventions should apply. These are:
since 1949 the United States has never denied their applicability
unless they apply, U.S. could not invoke the GPW if enemy forces threatened or in fact mistreated our forces
if they don't apply, the War Crimes Act could not be used against the enemy
turning away from the Conventions would invoke “widespread condemnation among our allies and in some domestic quarters”
doing so would also encourage other countries to look for technical “loopholes” in future conflicts
other countries would be less inclined to turn over terrorists or provide legal assistance to us if we deny applicability of the Conventions;
And finally (notable for its understatement):
“A determination that GPW does not apply to al-Qaeda and the Taliban 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.”
The paragraph of the memo which discusses the interplay between Section 2441 of the War Crimes Act and the Geneva Conventions is particularly striking. To his credit, Judge Gonzalez was remarkably frank and candid. Without apparent embarrassment, he asserted as one of the chief reasons to not invoke the Conventions the argument that such action “reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. §2441).” He essentially opined that the Conventions create problems because “grave breaches” of the Conventions would constitute war crimes under the domestic legislation that, unlike the Conventions themselves, is enforceable in U.S. courts. He said, “… it would be difficult to predict with confidence what action might be deemed to constitute violations of the relevant provisions of the GPW.” He referenced as examples of this problem the difficulty he saw in defining such phrases from the Conventions as “outrages upon personal dignity” and “inhuman treatment.” Later in that paragraph he offered, “… it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.”
His meaning is clear. We don't want to make ourselves liable under the War Crimes Act via “grave breaches” of the Geneva Conventions because we can't predict whether we may need to engage in what may be defined as outrages on personal dignity and inhuman treatment during the war on terror. This is a stunning observation. It certainly undermines good order and discipline within the military. More importantly, if we can't define those terms, how can we expect the enemy to do so? How can we ever demand that they not engage in such conduct having now said the prohibitions are incapable of definition?
A careful, honest reading reveals that the legal analysis of the January 2002 memo is very result-oriented. It appears to start with the conclusion that we don't want the Geneva Conventions to apply in the present situation, and then it reverse engineers the analysis to reach that conclusion. That approach may be appropriate for a criminal defense counsel who starts with the proposition that the client is not guilty and figures out how to best present that case, but it is not the kind of legal thoughtfulness one would expect from the legal counsel to the commander-in-chief.
It is also shortsighted, and very oriented to the immediate situation. It considers only the events at that moment in time and space. It fails to adequately consider the practical implications of characterizing the relevant provisions of the Geneva Conventions as “obsolete” and “quaint.” Once those words were written down they rang a bell that cannot be un-rung. If the Geneva Conventions were obsolete and quaint in 2002, they are obsolete and quaint for all time. Those two words will come back to haunt us forever, or until the Conventions are “modernized.” The problem is that it's a bit like going to war with the Army you have, not the Army you would like to have. These are the rules that we went to war with. We must make them work. We must live, or die, with them.
The Bush administration should officially and unequivocally repudiate Judge Gonzales's erroneous position on the applicability of the Geneva Conventions. It is not the case that the Conventions are obsolete in regulating armed conflict. Perhaps they can be improved and updated to deal with the new face of asymmetrical warfare, and the administration should work for that; but in the meantime they are the binding law and they serve us well. If new international law is needed for the struggle against terrorism, then that law should be developed, too, but do not throw out the Geneva Conventions because Judge Gonzalez's poor legal analysis couldn't make them fit.
The United States has supported the Geneva Conventions and urged other nations to do so for over half a century. Now, suddenly, they are characterized by the President's counsel as quaint and obsolete. He argues they may impede our freedom to commit what might otherwise be violations of our own War Crimes Act; we don't want this outdated international law to inhibit our ability to outrage human dignity and engage in inhuman treatment.
In physics the law of entropy holds that through time any system will degrade to disorder and ultimately to chaos unless there is an outside force that ensures order in the system. That applies equally to the solar system, the community of nations, and to the United States. The outside force ensuring world order is the regime of international treaties, obligations and customary international law. Without adherence to these, we will surely devolve to disorder through time.
This is particularly true in wartime. War is simply the state of the ultimate, but hopefully temporary, disorder. Its only value is to provide the time and space necessary for real solutions to take place – diplomatic, economic, political, and social. War is not a solution in itself and cannot be used to justify national misbehavior or loss of national integrity.
In disagreements or arguments between individuals, it is important that they not act in a manner that so poisons their relationship that it cannot recover. The same is true with nations. It is easy to act with integrity in peacetime when things are going smoothly. The true test of national integrity is in wartime. We must wage war in such a way that we are able ultimately to resume peace.
The Geneva Conventions envision an end to the hostilities and to the destruction of war. They envision a return to peace. They provide a framework for the conduct of the war that will enable the peace to be sustained and flourish. We must not be deterred just because our enemy in a war on terror doesn't comply with the Conventions. Our unilateral compliance will aid in the peace process. Moreover, it should have been understood that violation of the Conventions, or ignoring them, doesn't help bring an end to the war. To the contrary, as we have seen, this only adds ferocity to the fighting and lengthens the war by hardening the resolve of the enemy. Our flagrant disregard for the Conventions only serves as a recruiting poster for this enemy and for our enemies for generations to come.
Neo-Conned! Again Page 77
