The Treatment and Interrogation of Prisoners of War and Detainees
Graham, David E., Georgetown Journal of International Law
I. THE TREATMENT AND INTERROGATION OF PRISONERS OF WAR AND DETAINEES: CURRENT ISSUES (1)
The treatment and interrogation of Prisoners of War (POW) and detainees remains one of the most topical and controversial matters confronting the United States government. In this Article, I will discuss the principal legal issues associated with this subject. I will attempt to present, as objectively as possible, the different views associated with this topic, as there are certainly diverging opinions. However, my approach in discussing this particular subject is founded on a strong belief that the United States has an obligation to comply with the rule of law: domestic rule of law, international law, and, specifically, the Law of Armed Conflict, itself an integral part of international law. I do not view such compliance as a matter of convenience or a matter of choice. I consider U.S. compliance with the Law of Armed Conflict a strategic imperative, and it is on this basis that I approach the subject at hand.
With that foundation, let us look at the legal issues associated with the interrogation and treatment of POW and detainees. It is important to draw a distinction between these two categories of individuals. We are, in fact, dealing with POW on the one hand, and the law, rules, and regulations that apply to such personnel, and with detainees on the other, and the law, rules, and regulations that apply to these individuals. Status determination is extremely important when one makes decisions with respect to treatment and interrogation matters.
This Article will focus on the most recent military operations involving U.S. and Coalition forces. I will look first at the status of the individuals taken into captivity during Operation Enduring Freedom in Afghanistan, and then examine the law, rules, and regulations applicable to those personnel held captive as the result of Operation Iraqi Freedom.
Let us begin by focusing on the Afghan situation. From day one in the Afghan conflict, which commenced on October 7, 2001, U.S. and Coalition forces took into custody an exceptionally large number of both Al Qaeda and Taliban captives. (2) Almost immediately, the issues became: What is the status of these individuals? Do we afford them POW status? Are they entitled to the rights and privileges of the Third Geneva Convention Relative to the Treatment of Prisoners of War, or do they fall into another category of personnel, that is, detainees? You may recall that, although one will not find such a decision reflected in a Presidential Directive or in Department of Defense (DOD) guidance, the initial determination on the part of this Administration was that it would neither apply the Geneva Conventions to this conflict in general, nor the Third Geneva Convention dealing with POW to Al Qaeda or Taliban captives in particular.
This initial decision on the part of the Administration was driven almost exclusively by the first of three Department of Justice (DOJ) opinions. This particular opinion was issued on January 22, 2002 and was aptly entitled, "Application of Treaties and Laws to [A]l Qaeda and Taliban Detainees." (3) DOJ's analysis with respect to the status of Al Qaeda personnel proceeded along these lines: Mr. President, Al Qaeda, as an organization, is a non-state entity, a non-state actor
whose mission and purpose is international violence. As a non-state actor, it cannot sign international conventions, and because it cannot sign such conventions, it can be afforded no rights and privileges under these conventions, specifically the Geneva Conventions, and, even more specifically, the Third Geneva Convention dealing with POW. Second, Mr. President, Al Qaeda members are private citizens who have engaged in belligerent acts against a sovereign state--i.e., the United States--and, as such, they are unlawful combatants or unprivileged belligerents. As a result of this fact, these individuals exist beyond the realm of international law. They are not to be afforded the rights and privileges of international law, specifically the rights and privileges of the Third Geneva Convention. They are not entitled to POW status; they are simply detainees. (4)
In this portion of the opinion, the Department of Justice also dealt with a legal argument relevant to the issue of status that had surfaced over the preceding weeks, an argument along these lines: The conflict between Al Qaeda and the United States is actually a conflict of a non-international nature. In other words, Common Article 3 of the 1949 Geneva Conventions, the article of the Conventions that deals with non-international conflicts and the rights and privileges that flow to individuals taken captive during such conflicts, should be applied to this situation. The Justice Department dismissed this out of hand, saying: Look at the nature of the conflict involved here. The ongoing conflict between Al Qaeda and the United States is not an internal conflict; it is not a civil war. Accordingly, Common Article 3 does not apply. (5) For what it is worth, I think the DOJ was correct in its assessment of this particular issue.
The Justice opinion then went on to discuss the status of the Taliban and its personnel. Here, DOJ noted that this might well be perceived as a more careful question, a closer issue. The opinion quickly noted, however, that such was not really the case. Why? Because, Mr. President, you can simply suspend the applicability of the Geneva Conventions to this conflict as a whole and, more specifically, suspend the applicability of the Third Geneva Convention to the Taliban individuals. (6) How is this possible? Because, Mr. President, acting under your constitutional Article II authority, you can unilaterally suspend any part of or all of any international agreement. And here is why you should consider doing this, Mr. President. Afghanistan is nothing more than a failed state; it has no central functioning government. Afghanistan has also demonstrated, on many occasions, that it is either unwilling or unable to fulfill its own international obligations. Third, it enjoys very little, if any, international recognition as the legitimate government of Afghanistan. (7)
The opinion then noted: Alternatively, Mr. President, you may simply choose to apply the Geneva Conventions, particularly the Third Geneva Convention, as a matter of policy, as opposed to a matter of law. Having applied the Third Convention to the Taliban personnel, you can then make a determination that these individuals do not meet the requirements of this Convention and, therefore, are not entitled to POW status. So you see the beauty of this line of reasoning, Mr. President. You have reached the same determination regarding the status of Taliban personnel, but you have applied the Third Convention in arriving at this determination. (8) DOJ adds this caveat, however. If you choose to pursue this route, Mr. President, this would constitute a recognition that we are involved in an international conflict between State Parties. (9) The bottom line: Taliban personnel, in the view of DOJ, were not entitled to POW status; they, too, should be considered detainees under international law.
The Justice Department dealt with one other legal argument in this first opinion, which centered around the impact of customary international law on the matter of status determination. It was made along these lines: Regardless of a decision made by the President, acting within his perceived constitutional authority under domestic law, there exists a customary international law obligation to apply the Geneva Conventions to the situation at hand. These Conventions are clearly customary international law and are therefore binding on the United States, as well as the President, regardless of any decision that the President makes acting solely in his constitutional capacity. (10)
The Justice Department dismissed this argument. It noted, simply, that customary international law is not federal law and, therefore, is not binding on the President. The validity of this determination is certainly open to debate, but, with this very abrupt refutation of the binding nature of customary international law on the President, DOJ arrived at a decision with respect to the status of both Al Qaeda and Taliban personnel: They are not entitled to POW status. They are simply detainees. (11)
The reaction to this determination on the part of the Administration was fairly swift. It was met with significant international rebuke. (12) It was harshly criticized within the United States and, quite frankly, within the government itself, as many government lawyers were of the view that the conflict in Afghanistan was clearly an international conflict and, therefore, a conflict to which the Law of Armed Conflict applied. The Geneva Conventions were an integral part of the Law of Armed Conflict, if not the very foundation of this law. The Conventions, these lawyers argued, must be applied to the Afghan conflict.
This debate occurred for a number of weeks. Finally, the Chairman of the Joint Chiefs of Staff, supported by Secretary of State Powell, argued: Look, if for no other reason, you have to think of the ramifications to our own servicemembers when they are deployed overseas in the future and placed in harm's way. If you make the determination that the Geneva Conventions are not applicable to this conflict, and the Third Geneva Convention is not applicable to Taliban and Al Qaeda personnel, consider the potential impact that this might have on U.S. servicemembers. (13)
At this point, the Administration appeared to take a step back. On February 7, 2002, the President issued a memorandum to his principal cabinet members, to include the Secretary of State, the Secretary of Defense, the Chairman of the Joint Chiefs, and the Director of the Central Intelligence Agency. (14) This particular memorandum is so important, in terms of understanding the succeeding decisions made with respect to the status and the treatment and interrogation of detainees, that I will quote what I consider to be its most salient points.
It begins: "Our recent extensive discussions regarding the status of [A]l Qaeda and Taliban detainees confirm that the application of the Geneva Convention Relative to the Treatment of Prisoners of War ... to the conflict with [A]l Qaeda and the Taliban involves complex legal questions." (15) I think everyone would agree with the President on that point. "Pursuant to my authority," he continues, "as Commander in Chief and Chief Executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002," the opinion that we just discussed in some detail, "and on the legal opinion rendered by the Attorney General in his letter of February 1, 2002," which we shall speak to in just a moment, "I hereby determine as follows." (16) The President then proceeds to make some very finite determinations: "I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with [A]l Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, [A]l Qaeda is not a High Contracting Party to Geneva." (17)
I think that this is a valid conclusion. I doubt that there are many public international lawyers who would contend that Al Qaeda personnel, as unlawful combatants, should receive the protections of the Third Geneva Convention and be afforded POW status. The President then says, "I accept the legal conclusion of the Attorney General and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan." (18) Recall that this is an approach that the Justice Department had offered as a possibility in its January 22 opinion. "[B]ut," he says, while reserving the right to exercise this authority in this or future conflicts, "I decline to exercise that authority at this time." (19) An interesting statement follows: "Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban." (20) With this, one might think that a major reversal in policy has occurred. Not so fast, however. We shall return to this statement in just a moment.
In the next paragraph, the President notes: "I also accept the legal conclusion of the Department of Justice and determine that common Article 3," and I shall paraphrase here, is not applicable to this conflict, as it is not a conflict of a non-international character; it is not a civil war. (21) Again, this reflects the reasoning of DOJ's January 22 opinion.
Let us return to that preceding sentence: "Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban." A reversal of previously stated policy? Not at all, as the President then goes on to say: "Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice [set forth in a February 7, 2002 DOJ Memorandum to Alberto Gonzales, White House Counsel], I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva." (22) Again, the President has followed an option previously provided him by the Justice Department. He has made the decision to apply the Third Geneva Convention to the
Taliban, but, having applied this Convention, and specifically, article 4 of the Convention, he has made the decision that Taliban personnel do not meet the requirements of article 4.
Obviously, if we are to understand the analysis that led to this conclusion, which was based on the February 7 DOJ memo dealing with the status of Taliban forces under article 4, we need to take a look at the relevant portions of the text of this article. These are articles 4(A)(1) and (2). I would ask that you keep these provisions in mind as we examine the reasoning of the February 7 memo.
Article 4: Prisoners of War
Prisoners of War, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict.... (23)
The individuals referenced in article 4(A)(2) must meet four very specific requirements in order to be afforded POW status. To paraphrase, these individuals must be commanded by a person responsible for their actions; they must carry their arms openly; they must wear a distinctive symbol, recognizable at a distance; and they must comply with the Law of Armed Conflict. (24)
Once again, keep these provisions in mind. Article 4(A)(1) deals essentially with regular armed forces; article 4(A) (2) deals with volunteers, militia corps, and resistance groups. However, the individuals addressed in article 4(A)(2) have to meet those noted additional requirements.
The Justice Department, in its February 7 memo, (25) framed its analysis as follows: We have taken a look at article 4(A)(2) of the Third Geneva Convention, and we have made a determination ... Suddenly, an imaginary hand goes up. Wait a minute, why are you speaking in terms of 4(A)(2)? Why did you bypass 4(A)(1)? What we are talking about here are members of the armed forces of Afghanistan. Do not look to 4(A)(2) and the requirements that individuals must meet under this provision in order to be afforded POW status. The Taliban are, in fact, the armed forces of Afghanistan. The Justice Department responds: No, you are mistaken about that. The Taliban are nothing more than simply a loose confederation of militia groups. Counterpoint: Who are you to define "armed force"? "Armed force" is not defined in the 1949 Geneva Conventions. Who are you to simply invent a definition of armed force--one that, by the way, would require the Taliban to comply with the requirements of 4(A)(2)? Justice Department: We did not "invent" this definition. Surely, you are aware that this is a definition derived down through the years as an accepted concept of the customary Law of Armed Conflict. The requirements that appear in 4(A)(2) are precisely those requirements for lawful combatants set forth in article 1 of the annex to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land. These requirements, then, must be met by members of any "armed force."
This is a persuasive argument on the part of the Justice Department, though one does have to smile at DOJ's newfound respect for customary international law. The Justice Department then proceeds to state: We have made a decision that the Taliban do not meet the requirements of 4(A)(2). (26) DOJ offers, as support for the fact that any "armed force" must meet the requirements of 4(A)(2), a number of commentators who have written on the subject, including the International Committee of the Red Cross Commentary to the Geneva Conventions. A very common sense argument is also made. Justice notes that it would make very little sense to compel resistance and militia groups to comply with the requirements of 4(A)(2), and not have these same requirements apply to the "armed force" of a state. (27) Again, I view this as a fairly persuasive argument.
Having made its case for the applicability of 4(A)(2), rather than 4(A)(1), DOJ then notes that Taliban personnel obviously do not meet the requirements imposed by this provision. Accordingly, they are unlawful combatants and, as such, not entitled to POW status. (28) The bottom line: neither Al Qaeda nor Taliban personnel are to be accorded POW status.
Before I return to the President's memo of February 7, let me speak very briefly to another related issue. Another hand goes up: The status of the individuals in question is not a determination that the United States can make unilaterally, as a matter of policy. The United States has an international obligation to conduct what are referred to as article 5 tribunals in order to determine status. Is there any validity to this assertion? Once again, reference must be made to the specific text of article 5 of the Third Convention.
Article 5: Beginning and End of Application The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. (29)
In view of the text of article 5, was the United States under an international obligation to conduct article 5 tribunals to determine the status of Al Qaeda and Taliban personnel? The Justice Department responds to this question in the following manner: Look at the text of article 5. The text states, "Should any doubt arise. "And this doubt must arise in the mind of the capturing power, as reflected, in this case, in the determination made by the President on this matter. The President has, after examining the applicable law, made the decision that Al Qaeda and Taliban personnel are not entitled to POW status. (30) Of note here is the fact that the "doubt" spoken to in article 4 is not doubt which might arise in the "mind" of the Red Cross, Human Rights Watch, or the collective psyche of the international community; the required doubt must arise in the mind of the capturing power, represented, in this case, by the President. There was no doubt in the mind of this Administration as to the status of the individuals in question. They were unlawful combatants, and they were not entitled to POW status.
Let us return, very briefly, to the President's memo, as I think language appearing at the end of this document has a substantial impact on future decision-making. "Of course, our values as a nation ... call for us to treat detainees humanely, including those who are not legally entitled to such treatment." (31) I would pause here to note that this text appears to evidence poor editing on the part of the executive staff. Surely the President did not intend to contend that there are certain detainees who are not legally entitled to humane treatment.
"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." (32) The President uses this language again in his concluding paragraph: "I hereby reaffirm the order previously issued by the Secretary of Defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." (33) Remember the phrase "consistent with military necessity." If the subject with which we are dealing was a tort action, this language represents the proximate cause of the great majority of succeeding decisions made with respect to both the treatment and interrogation of detainees.
As a result of the February 7 presidential memo, a status determination has been made with respect to Al Qaeda and Taliban personnel. They are not POW; they are simply detainees, and a significant number of these individuals have been taken captive by U.S. and Coalition forces, the Northern Alliance, and various Afghan warlords. The Department of Defense now makes the determination that it must transport certain of these individuals to Guantanamo for intelligence interrogation purposes. It develops criteria, which remain classified, to be used in vetting these personnel for the purpose of determining those to be moved to Guantanamo, and over 600 individuals are eventually transported to facilities there.
Questions now arise with respect to the manner in which the detainees at Guantanamo are to be treated, given the fact that they are "simply detainees" rather than POW. What standards of treatment apply? What interrogation standards apply? In actuality, very definitive rules, regulations, and standards existed with respect to both the treatment and interrogation of these detainees, and these standards had been in place for many years. U.S. service members had long been trained on these regulations, and, in fact, these were the standards initially applied at Guantanamo. A brief look at the source documents setting forth these baselines provides insight into the definitive guidance contained therein.
First, with respect to the treatment of detainees: Army Regulation 190-8, "EPW, Retained Personnel, Civilian Internees and Other Detainees," deals with both POW and detained personnel. (34) Paragraph 1-5(a) of this regulation provides that "[a]ll persons captured, detained, interned, or otherwise held in U.S. Armed Forces custody during the course of conflict will be given humanitarian care and treatment." (35) Paragraph 1-5(b) specifically provides that "[a]ll prisoners will receive humane treatment without regard to race, nationality, religion, political opinion, sex, or other criteria. [M]urder, torture, corporal punishment, mutilation, the taking of hostages, sensory deprivation, collective punishments, execution without trial by proper authority, and all cruel and degrading treatment [are prohibited]." (36)
Army Regulation 190-8 thus sets forth very specific guidance concerning the treatment of detainees, and I would note that, as the Army is the Executive Agent for the Department of Defense for POW and detainee matters, this regulation and the doctrinal guidance that I shall speak to in just a moment apply across the board to all of the Armed Forces.
Well, one might ask, what about detainee interrogation methods; did equally clear guidance exist on this subject? Again, the answer is an emphatic yes. Army Field Manual 34-52 deals specifically with intelligence interrogation. (37) What does this manual say about the very important topic of the interrogation of individuals detained at Guantanamo? Paragraph 1-7 provides that Enemy Prisoners of War (EPW); captured insurgents; civilian internees; other captured, detained, or retained persons; foreign deserters; or other persons of intelligence interest "are protected by the Geneva Conventions." (38) Paragraph 1-8 of this same manual states that "[the Geneva Conventions] and U.S. policy expressly prohibit acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or aid to interrogations." (39) Very importantly for U.S. servicemembers, it goes on to say: "Such illegal acts are not authorized and will not be condoned by the U.S. Army. Acts in violation of these prohibitions are criminal acts punishable under the [Uniform Code of Military Justice (UCMJ)]." (40) In other words, if servicemembers do not comply with these standards, or go beyond them, they will be subject to prosecution and punishment under the UCMJ.
Still further specific guidance is provided in paragraph 1-8: "Physical or mental torture and coercion revolve around eliminating the source's free will.... Torture is defined as the infliction of intense pain to body or mind to extract a confession or information, or for sadistic pleasure." (41) Examples of physical torture include electrical shock; infliction of pain through chemicals or bondage; forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time; food deprivation; and any form of beating. (42) Examples of mental torture include mock executions, abnormal sleep deprivation, and chemically induced psychosis. (43) In summary, very specific regulatory and doctrinal guidance existed with respect to both the treatment and interrogation of detainees at Guantanamo.
Given the existence of such clear guidance, one might ask: why all the controversy? Why all the problems? The answers lie in the fact that, in the fall of 2002, it would appear that some within Washington were positing the following line of reasoning: All of this regulatory and doctrinal guidance now controlling the manner in which we treat and interrogate detainees appears to have been based on the international requirements of the Geneva Conventions applicable to POW, and the President has advised us, very clearly, that these Conventions do not apply to the Guantanamo detainees. They are not POW. Does it not stand to reason, then, that the current regulatory and doctrinal guidance, at least as it applies to