In a memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, General Counsel of the Department of Defense, Assistant Attorney General Jay S. Bybee concludes that the Geneva Conventions “do not protect members of the al Qaeda organization”, and, furthermore, that the “President has sufficient grounds to find that these treaties do not protect members of the Taliban militia.”
The January 22, 2002 memo, entitled “Application of Treaties and Laws to al Qaeda and Taliban Detainees”, “expresses no view as to whether the President should decide, as a matter of policy, that the U.S. Armed Forces should adhere to the standards of conduct in those treaties with respect to the treatment of prisoners.
In other words, while the Justice Department isn’t suggesting that official policy should be to violate the Geneva Conventions, it would be just fine for the President to do so were he to feel so inclined.
This is the legal framework the document sets out to establish, and does so through the Pharisaic interpretation of the War Crimes Act (18 U.S.C., Section 2441) and the Geneva Convention Relative to the Treatment of Prisoners of War (Geneva III). The memo begins by noting that “it is conceivable that some might argue” that prison facilities such as the one at Guantanamo Bay, Cuba, “are not fully in keeping with the terms of Geneva III”, while offering up praise for meeting “minimal humanitarian requirements” (emphasis added).
As the memo notes, Section 2441 of title 18 of the United States Code “renders certain acts punishable as ‘war crimes’.” In doing so, the War Crimes Act (WCA) “incorporates, by reference, certain treaties or treaty provisions relating to the laws of war, including the Geneva Conventions.” What the WCA does, in effect, is to codify International Humanitarian Law (IHL) into Federal Law. This is an important point to bear in mind as one analyzes Bybee’s rational for concluding that it is acceptable — that is, that it is “legal” — for the United States Armed Forces to disregard the Geneva Conventions in the “war on terrorism”.
The memo argues that there are three reasons why “neither the detention nor trial of al Qaeda fighters is subject to Geneva III (or the WCA).” The first argument is that “Geneva III does not apply to a non-State actor such as the al Qaeda terrorist organization”, and therefore “Conduct towards captured members of al Qaeda…also cannot constitute a violation of 18 U.S.C.” In other words, if any person who happens to be arbitrarily labeled as a “member of al Qaeda” is, say, for example, tortured, it would not be a violation of either international or federal law.
The second argument is that “al Qaeda members fail to satisfy the eligibility requirements for treatment as POWs”. The memo notes that “It might be claimed that the broad terms of these provisions could be stretched to cover al Qaeda”, but expresses that “This view would be mistaken” since al Qaeda is “a non-State actor” to begin with. Again, the corollary is that the torture of any “member of al Qaeda” is entirely legal.
The third argument is that “the nature of the conflict precludes application of common article 3 of the Geneva Conventions”. Common article 3 applies minimum standards of treatment towards persons who are not taking an active part in hostilities, including those who have laid down their arms or have been detained. However, article 3 applies to cases of armed conflict “not of an international character”. “Therefore,” the memo adds, “the military’s treatment of al Qaeda members is not limited either by common article 3 or 18 U.S.C.”
From a strictly legalistic standpoint, with total disregard for the spirit of the law, the three arguments are correct. Legally, the Geneva Convention can only bind the “High Contracting Parties” which have agreed to its terms. Any party which has not agreed to its terms is neither bound nor protected by them. Thus, Bybee argues, the U.S. is not “limited” by the humanitarian standards set forth in the Geneva Convention, since al Qaeda is not a “Party” to the treaty, and may therefore treat detainees in a manner which might otherwise violate international humanitarian law.
Of course, if we accept this legal argument, there is a corollary. Conversely, al Qaeda has no legal obligation to behave according to this same standard of international law. If it is okay for the U.S., as a Party to the Convention, to disregard its principles, then it must therefore be all the more acceptable for al Qaeda, as a “non-State actor” that is not a Party to the treaty, to disregard its standards of behavior.
This simple truism did not go unnoticed by the author of the memo, as shall be seen.
But before addressing this technicality, Bybee examines the legal argument for determining whether or not Taliban members are entitled to protection under the Geneva Convention, which is “a more difficult question”. Afghanistan is a party to the Geneva Conventions. However, the memo adds, “we conclude that the President has more than ample grounds to find that our treaty obligations under Geneva III toward Afghanistan were suspended during the period of the conflict.”
The argument is for this assumption is that Article II of the Constitution gives the President “unilateral power to suspend whole treaties or parts of them at his discretion.” A simple reading of Article II is revealing. Section 2 states that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur” (emphasis added). “Consent of the Senate” is thus understood by the Justice Department to mean “unilateral power” for the President, while “make” is interpreted to mean “suspend” by these same legalistic wizards.
Of course, the memo is quick to note the problem with this interpretation, acknowledging that “the Constitution does not specifically mention the power to suspend or terminate treaties”. Rather, “these authorities have been understood by the courts and long executive branch practice as belonging solely to the President.” In other words, the courts have upheld the decision that a power not delegated to the President in the Constitution is nevertheless reserved by the Executive Branch.
One might wish to note that the tenth amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The author, as well as, or so it would seem, certain “courts”, have apparently chosen to overlook this particular part of the Constitution, for obvious reasons.
Thus, because Afghanistan could be regarded as a “failed State” with no government, the President “could decide that no treaty obligations were owed to such a force.” The President “could further decide that these obligations are suspended until Afghanistan became a functioning state that is in a position to perform its Convention duties. The federal courts would not review such political questions, but instead would defer to the decision of the President.”
There is, of course, another little hitch, duly noted by the author. “Although the President may determine that Afghanistan was a failed State as a matter of domestic law,” the memo adds, “there remains the distinct question whether suspension would be valid as a matter of international law.” The “resolution of that question” is “worth consideration” only “as a means of justifying the actions of the United States in the world of international politics”, but “has no bearing on domestic constitutional issues, or on the application of the WCA.” In other words, the rest of the world might not like it, but the President may, if he is so inclined, unilaterally declare that the U.S. is no longer obligated by the international treaties to which it is a party. In “certain circumstances,” the memo adds, “countries can suspend the Geneva Conventions consistently with international law.”
It might be interesting to learn what the U.S. reaction might be were any other country (say, for example, Iraq or Iran) to simply declare that it could violate the standards codified in the Geneva Conventions if so pleases. It is not difficult to hypothesize what the reaction might be to such a declaration.
The memo further argues that “International law has long recognized that the material breach of a treaty can be grounds for the party injure by the breach to terminate or withdraw from the treaty.” The only problem with this, the author notes, is that “these general rules authorizing suspension ‘do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character”.
A further problem is also noted. The principles set forth in the Geneva Conventions have become “customary international law”. In other words, the standards of warfare established by the Conventions, while an unprecedented new concept at the time of their writing, are today regarded as “customary”, or, applicable to all nations, whether party to the Conventions or not.
To illustrate “customary” law, take murder. Everyone knows the story of how Moses brought the Israelites the ten commandments from Mount Sinai. This was the first time that the law “Thou shalt not murder” was codified in writing. However, prior to that event, murder was still not lawful. Indeed, the very first murderer, Cain, was punished for his transgression of what has always been regarded as “customary” law. It is, in essence, common sense law, standard norms of behavior to which all parties are expected to adhere to, whether it has been agreed to in writing or not.
Thus, in keeping with the spirit of the law, while the the parties obligated to uphold or protected by the standards codified within the Geneva Conventions were limited at the time of their writing to those nations which chose to sign the treaties, the Conventions are regarded today as “customary” and therefore universally applicable. The problem, then, the memo notes, is that “a decision by the United States to suspend Geneva III with regard to Afghanistan might put the United States in breach of customary international law.”
Furthermore, “the Geneva Conventions could themselves be read to preclude suspension.” According to “Some commentators”, the “duty of performance” under the Geneva Conventions “is absolute and does not depend upon reciprocal performance by other State parties.” The difficulty is that “Under this approach, the substantive terms of the Geneva Conventions could never be suspended, and thus any violation would always be illegal under international law.”
“This understanding,” the memo asserts, “cannot be correct,” because “There is no textual provision in the Geneva Conventions that clearly prohibits temporary suspension.” The converse, and more reasonable, logic that the Conventions cannot be suspended because there is no textual provision that clearly allows suspension, is conveniently overlooked. “Indeed, if the drafters and ratifiers of the Geneva Conventions believed the treaties could not be suspended,” the memo argues, “they could have said so explicitly and easily in the text.” Conversely, and more correctly, if they had intended that any nation be able to relieve itself of its obligations under the treaties at will, they would have said so explicitly and easily in the text. Notably, they made no such provision.
A further important issue the memo makes note of is that “To say that the President may suspend specific provisions of the Geneva Conventions as a legal requirement is by no means to say that the principles of the laws of armed conflict cannot be applied as a matter of U.S. Government policy.” The President may decide, “for reasons of diplomacy”, to comply with the principles of the Geneva Conventions if it “serves the interests of the United States”.
“We express no opinion,” the author adds, “on the merits of such a policy decision.”
The President may also determine, “as a matter of his judgment”, that “the policy of the United States will be to enforce customary standards of the law of war against the Taliban and to punish any transgressions against those standards.” In the event that such a policy decision is made, “The U.S. military thus could prosecute Taliban militiamen for war crimes for engaging in such conduct.”
At this point, it is perhaps fitting to pause and recall that the sole purpose of this memo is to argue that members of the U.S. military may not be prosecuted for war crimes for engaging in conduct which violated the Geneva Conventions. The President may, the argument goes, simply decide that the international law does not apply. Recall the moral truism that if it is okay for the U.S., as a party to the treaty, to disregard its standards, then it must also be okay for others, which are not party to the treaty, to do so.
Yet, what the memo is here saying is that, while the U.S. may, on its own whim, absolve itself from any legal “obligation” to behave according to a certain standard, it may still prosecute other parties for failing to behave according to that same standard.
The word “hypocrisy”, at least in its Biblical sense, can appropriately be used to describe this kind of reasoning.
The pharisaic legalisms continue. The memo adds further that the decision to apply the principles of international humanitarian law “as a matter of policy, not law, would be fully consistent with the past practice of the United States.” Instructively, Vietnam, Panama, and Bosnia are cited as examples of occasions where the U.S. “applied Geneva III as a matter of policy, without acknowledging any legal obligation to do so.”
“Even if the President decided not to suspend our Geneva III obligations toward Afghanistan, two reasons would justify some deviations from the requirements of Geneva III.” The first justification for violating the Geneva Convention is “self-defense”. So, for example, if the torture of a prisoner is regarded as “self-defense”, it would be “justified”. The second justification is the previously noted argument that members of the Taliban are not entitled to POW within the terms of the convention.
The memo also adds that “it is possible that some may argue that our GTMO (Guantanamo) facilities do not fully comply with all of the treaty’s provisions.” While “some very well might argue that detention conditions currently depart from geneva III requirements”, still “not all of these deviations from Geneva III would amount to an outright violation of the treaty’s requirements. Instead some departures from the text can be justified by some basic doctrines of legal excuse,” including the claim of “self-defense”. The September 11 attacks “have triggered the United States’ right to defend itself.”
Interestingly, in light of the previous discussion concerning Article II, the memo claims that, according to the Constitution, “the President possesses the power to interpret treaties on behalf of the Nation.” The Justice Department would be hard-pressed to actually provide a quote from Article II which might support this claim. But this is the Justice Department we are speaking of here, so such minor technicalities as what the Constitution actually does or does not say can be expected to be ignored in favor of sleight-of-hand legalisms.
The memo then turns once again to the fact that “the substance of these agreements [i.e., the Geneva Conventions] has received such universal approval that it has risen to the status of customary international law.” There is, of course, a “however”. “Customary international law, however cannot bind the executive branch under the Constitution because it is not federal law.” In other words, the U.S. may disregard law, though it be “customary”, if it is not also federal law.
This argument belies two simple facts. One, by nature “customary” international law is applicable to all nations, whether the domestic law of each nation codifies the same principles or not. Two — and the importance of this point cannot be overemphasized — The customary international law in question has been codified into federal law. Its called the War Crimes Act. Not unknown to the authors of the memo, this fact is merely conveniently forgotten for the moment on order to further the argument that it’s legally acceptable for the U.S. to violate the Geneva Conventions. While the memo engages in a lengthy show of sleight-of-hand legalism in an effort to show that customary international law is not federal law, reviewing the ridiculousness of this straw-man argument is entirely unnecessary in light of U.S.C. title 18, section 2441.
Thus, if we follow the memo’s circular argument back around to its origins, the central fallacy is easily identifiable. The only alternative is that the U.S. is, in fact, obligated, both morally and, yes, even legally, to uphold the standards on international humanitarian law set forth in the Geneva Conventions (and codified into federal law under the War Crimes Act, it will be noted once again).
It may also be noted that the only practical purpose for one to engage in any discussion which would seek to demonstrate otherwise would be to absolve oneself not only of moral responsibility, but also of legal liability, for violations of customary international standards of humanitarian principles. It is out of a similar desire to absolve oneself from liability that the author of the memo notes at the outset that it “expresses no view as to whether the President should decide, as a matter of policy, that the U.S. Armed Forces should adhere to the standards of conduct in those treaties with respect to the treatment of prisoners.”
The importance of and meaning behind this caveat should not be overlooked.