Professor Harvey Rishikof's fine article on institutional ethics in three distinct scenarios includes some troubling elements that bear additional scrutiny and analysis. Professor Rishikof capably addresses the interplay between law and ethics and the intersection of the respective roles of the President, Congress, and courts in drawing the line between lawful and unlawful conduct in prosecuting the war on terror and in evaluating the factors inherent in determining where that line should be drawn. He admits that the placement of that line may vary in different circumstances, and properly so.
Most international law practitioners would endorse the discussion in the first two sections of his article (addressing command responsibility under the Uniform Code of Military Justice, the principles underlying Protocol I [which lacks ratification], and the role of the judiciary reflected in the Israeli institutional court view). The discussion in the third section invites further review. This section addresses interrogation/prosecution issues and the need for greater congressional oversight of this process to ensure that the tenets of the Geneva Conventions are properly applied. Few could be disturbed by Congress exercising its authority over military operations through control of defense appropriations and through other appropriate legislation. This prerogative was addressed in a recent article in Joint Force Quarterly. (1) Similarly, there is no disagreement with Professor Rishikof that the provisions of Common Article 3 of the convention, addressing noninternational armed conflict, apply. (2)
What is troubling is Professor Rishikof's view that protections beyond those within Common Article 3 (applicable to unlawful belligerents) of the Third Geneva Convention apply as a matter of law to the detainees at Guantanamo. For example, in advocating a legislative commission to "preclude any deviation from the Geneva Conventions again," as he apparently believes occurred at Guantanamo, he asserts that "under the Geneva Conventions, only name, rank, age, and serial number are required." No al Qaeda member is a lawful belligerent to whom these rules beyond Article 3 apply, and none has a rank or serial number recognized in law.
The war against the terrorists who attacked the United States on September 11, 2001, and their supporters does not represent traditional warfare between states adhering to the law of armed conflict. Rather, it reflects nontraditional violence against states and innocent civilians by individuals or groups for political ends without regard to the "civilized" behavior on the battlefield that underpins the four 1949 Geneva Conventions, including the Convention Relative to the Treatment of Prisoners of War (GC III). (3)
Despite the fact that the Taliban and al Qaeda fighters being held at Guantanamo do not warrant prisoner of war (POW) treatment under GC III because they exhibited none of the criteria for lawful belligerent status under Article 4A of GC III (wearing uniforms or distinctive emblems, carrying arms openly, serving under a recognized command structure, and observing the laws of armed conflict), the Bush administration stated early on that those detained would enjoy humane treatment in confinement, although not the status of POWs. (4) The pertinent question is what this means in terms of access to the courts and interrogation of detainees.
The question of detainee access to U.S. District Courts was answered by the Supreme Court in Boumediene v. Bush, (5) decided June 12, 2008. The court in Boumediene reversed the Court of Appeals for the DC Circuit and held that aliens detained as enemy combatants at the Naval Station at Guantanamo Bay, Cuba, were entitled to the right of habeas corpus to challenge the legality of their detention. (6) The court further held that the provision (Article 7) of the Military Commissions Act (MCA) denying Federal courts jurisdiction to hear habeas corpus suits that were pending at the time of its enactment amounted to an unconstitutional suspension of the writ to these individuals. …