War by Other Means: An Insider's Account of the War on Terror
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However much political activists repeat the claims of human rights groups, they have no merit. The idea that all the lawyers in the Department of Justice, the White House, and the Defense Department are engaged in a conspiracy to twist the law of the land to authorize an illegal war is simply ridiculous. Al Qaeda is an unprecedented enemy--a covert network of cells with no territory to defend, no population to protect, no armed forces to attack. It operates by launching surprise attacks on purely civilian targets. The only way to prevent future September 11s will be by acquiring intelligence. The main way of doing that is by interrogating captured al Qaeda leaders or successfully breaking into their communications. American policy makers have the unenviable and difficult task of preventing future attacks and adapting the rules of war, written for large-scale conflicts between nations, for this new kind of enemy. Human rights groups undermine their own credibility when they constantly criticize the United States for defending itself against al Qaeda, treating it no differently than they do the real human rights tragedies occurring around the world.
The critics argue that the Geneva Conventions set standards that must apply in all conflicts, big or small, whether nations, insurgents, or terrorists are fighting. They claim that the Geneva Conventions are best read as applying to any armed conflicts that take place on the territory of any treaty signatory (which would be any war, since virtually every nation in the world has joined the Conventions), and that even if the treaties do not strictly apply as a matter of treaty law, they have become customary rules universally accepted through consistent practice by states. While appealing in its simplicity and universality, this argument makes the basic mistake of treating al Qaeda as a nation-state which obeys the rules of war. It ignores what makes al Qaeda unique and unprecedented: the fact that it is a stateless terrorist organization that can attack with the power of a nation. To pretend that rules written at the end of World War II, before terrorist organizations and the proliferation of know-how about weapons of mass destruction, are perfectly suitable for this new environment refuses to confront new realities.
Serious legal and policy choices had to be made in this war. The first and most important question presented to us at the Department of Justice was this: Are al Qaeda and other terrorist organizations entitled to be treated illegal or unprivileged nation-states, or should they be treated as enemy combatants not entitled to the protections of the Geneva Conventions?
The question first arose in November 2001, as U.S. forces began to capture al Qaeda and Taliban fighters in Afghanistan. Pentagon officials had to make basic decisions about the conditions of detention for al Qaeda detainees. The Third Geneva Convention requires that the United States cannot hold a prisoner of war in "close confinement" or "in penitentiaries," but instead "under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area."3 In other words, POWs cannot be detained in individual cells, as in a prison, but only in open barracks. A Geneva Convention POW camp is supposed to look like the World War II camps seen in movies like Stalag 17 or The Great Escape. But because Gitmo does not look like this, critics automatically declare that detainees' human rights are being violated.
What the critics usually fail to mention is that the Geneva Conventions are treaties that apply only to international armed conflicts between the "high contracting parties" that have signed them. Al Qaeda is not a nation-state. It has never signed the Geneva Conventions. The Geneva Conventions even allow a warring power that is not a party to the Conventions to benefit from their protections by voluntarily accepting their terms in a specific war. Al Qaeda has not done this. Again, these provisions all make plain who is covered by the treaty, and who is not. The Geneva Conventions are not a law of universal application. They are limited to specific types of situations that arise in wars between nations that are parties to them or that accept their provisions.
Al Qaeda violates every rule and norm developed over the history of war. Flagrant breach by one side of a bargain generally releases the other side from the obligation to observe its end of the bargain. Al Qaeda has made no bargain, and observes no rules resembling those contained in the Geneva Conventions. It does not limit fighting to combatants. It does not spare innocent civilian life. It does not take prisoners. Rather, it kidnaps innocent civilians, such as Wall Street Journal reporter Daniel Pearl, and hacks off their heads.
The War Crimes Act of 1996 makes it a federal offense to cause a "grave breach" of the Geneva Conventions, to violate what is known as "common article 3" of the Conventions, and to defy the provisions of another core law of war treaty, known as the Hague Regulations.4 Because it made elements of the Geneva Conventions part of the federal criminal statute, OLC had to interpret the treaty. No one in the Bush administration, contrary to critics' accusations, wanted to break the law. The very purpose of consulting the Justice Department was to make sure that no one did. Before our military and intelligence agencies could establish policy to address the threats posed by al Qaeda, they needed to know what the law meant first.
When the question on the application of the Geneva Conventions came to OLC, I asked Robert Delahunty to help me with the initial research and drafting of the opinion. Delahunty was one of the three career lawyers in the office who had risen to the level of the Senior Executive Service, the top crust of the civil service. A man in his early fifties, Delahunty had a large white beard, a mane of white hair, a round jovial face, and a hint of an English accent--he often reminded me of a kindly Saint Nick. He had first gone to England to study Greek and Roman philosophy and history, eventually becoming a tenured faculty member at a British university, left to go to Harvard Law School, and joined the Justice Department in the late 1980s. He had drafted many of OLC's opinions on war powers, foreign policy, and presidential-congressional relations under the first Bush and Clinton administrations. He had an encyclopedic knowledge not just of the law and academic works, but of the real lifeblood of international law--the examples of state practice. To my mind, Delahunty was the very model of the career civil servant who applies his or her long years of experience and knowledge to the benefit of the American people.
In an opinion that eventually issued on January 22, 2002, OLC concluded that al Qaeda could not claim the benefits of the Geneva Conventions. The war with the Taliban was covered by the Geneva Conventions because Afghanistan had signed them. But depending on the circumstances, it was possible that the Taliban had forfeited its rights.5 First, we reviewed the actions forbidden by the Geneva Conventions, and by reference the War Crimes Act. Grave breaches of the Geneva Conventions include "willful killing, torture or inhuman treatment," "willfully causing great suffering or serious injury," or forcing a POW to fight or depriving him of a fair trial.6 Grave breaches of the Conventions, we believed, could occur only in cases of declared war or any other armed conflict between "two or more of the High Contracting Parties" to the Conventions.7
The War Crimes Act also criminalizes violations of "common article 3." Common article 3--"common" because it is repeated in each of the four Geneva Conventions--requires that captured prisoners be treated humanely. It declares that the detaining power--here, the United States--not engage in "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," or "outrages on personal dignity, in particular humiliating and degrading treatment."8 Common article 3 applies in "armed conflict not of an international character" that occurs within the territory of one of the signatories to the treaties. The weight of commentary on the drafting of the Geneva Conventions suggested that common article 3 governed civil wars internal to a country.9 It seemed clear that the drafters--who, after all, had worked in the aftermath of World War II--had anticipated only two types of conflicts: wars between nation-states and civil wars. They did not, and perhaps could not, anticipate the revolutionary change in warfare put on display on September 11, 2001: a non-state actor that could wage international conflicts with all the power of a nation.
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Bush administration critics make the erroneous claim that U.S. treatment of al Qaeda terrorists violates common article 3.10 Some international bodies and human rights critics demand that common article 3's requirements--including its vague prohibition on "outrages on personal dignity"--extend to all forms of armed conflict.11 That reading ignores the text of the Geneva Conventions itself, which says that these requirements apply only to conflicts "not of an international character." It also ignores the context in which the Conventions were written. The clear understanding of nations at the time was to prevent cruelty and unnecessary harm in civil wars, which until that time the laws of war had left unregulated. Many of the nations that signed the Geneva Conventions viewed the emergence of non-state organizations in warfare as a lacuna in the laws of war, and so approved two sets of upgrades to the Conventions in 1977 to explicitly protect them. Tellingly, the United States refused to ratify these add-ons, with President Reagan specifically declaring them objectionable because they gave terrorists the protections in warfare due only to honorable warriors.12
The structure of the Geneva Conventions, as ratified by the United States, made clear that al Qaeda could not possibly claim their benefits. Al Qaeda simply was not a nation-state, and it had never signed the Geneva Conventions. Their legal benefits could not extend to al Qaeda, which would not obey them anyway. Common article 3 did not apply to al Qaeda because it is not fighting an internal civil war with the American government. The 9/11 attacks and the struggle with al Qaeda represented an international armed conflict that extended beyond the territory of the United States.
Even if the Geneva Conventions applied, they require that combatants obey four basic principles to receive POW status: They must operate under responsible command, wear uniforms, carry their arms openly, and obey the laws of war. Combatants must clearly distinguish themselves from civilians, and refrain from attacking civilians, so as to reduce the destruction of war on innocent noncombatants. Because of their record of launching deliberate, surprise attacks on civilian targets with no military value and their practice of disguising themselves as civilians, the January 22 opinion concluded, "Al Qaeda members have clearly demonstrated that they will not follow these basic requirements of lawful warfare."
Whether the Taliban deserved the protections of the Geneva Conventions was a much more difficult question, and proved to be the most controversial part of the opinion. Afghanistan had signed the Geneva Conventions, but the question was whether Afghanistan continued as a viable state. The Constitution's recognition of the President as commander in chief and chief executive, long historical practice, and the Supreme Court's view that the President is the "sole organ of the nation in its external relations, and its sole representative with foreign nations,"13 established that President Bush could suspend treaties with another nation that had ceased to exist. In fact, the Supreme Court had held in a 1947 case that it would not second-guess a decision by the political branches as to whether Germany had ceased to exist as a nation after World War II.14
Recent history supplies several cases where a territory lost an effective government and essentially failed. Somalia was the clearest example. Central government authority had collapsed there by 1992, armed gangs fought over control of people and land, and the United States and its allies under the UN's aegis had sent troops. Liberia and Haiti were other examples. OLC's job of defining the law did not extend to uncovering the facts in Afghanistan--that is the job of the Defense and State Departments and the CIA. The ultimate decision as to whether Afghanistan was a failed state rested with the President. But the U.S. government was already on record. Defense Secretary Donald Rumsfeld had said during the Afghanistan invasion that the "Taliban is not a government. The government of Afghanistan does not exist today. The Taliban never was a government as such."15 Just before the start of the war, the State Department had said: "There is no functioning central government" in Afghanistan. Rather, it said, "The country is divided among fighting factions" and the Taliban is "a radical Islamic movement" in control of about 90 percent of the territory.16 A similar judgment about Somalia had allowed the UN Security Council to authorize a military intervention for humanitarian reasons, even though the UN Charter allows the UN to use force only to counter a threat to "international" peace and security, not to mix in internal civil wars.
OLC sought to develop a legal test as to whether a state had "failed." In our view, state failure was marked by "the inability of central authorities to maintain government institutions, ensure law and order, or engage in normal dealings with other governments, and by the prevalence of violence that destabilizes civil society and the economy."17 Borrowing from the legal test for the birth of a state, OLC recommended that the President consider whether Afghanistan had a defined territory and population, whether it was under the control of a government, whether the government could conduct foreign relations and carry out its international obligations, and whether the government has been recognized by the other nations of the world. If the President found these conditions did not exist, he could suspend our legal obligations with Afghanistan because the Taliban was not a real government running a real country. Government testimony and expert works indicated that "rather than performing normal government functions, the Taliban militia exhibited the characteristics of a criminal gang." According to the UN, it had "extracted massive profits from illegal drug trafficking in Afghanistan and subsidized terrorism from those revenues."18 Afghanistan itself was subject to the control of warlords and ethnic groups, much of the population had fled to refugee camps, and all but three countries in the world--Saudi Arabia, Pakistan, and the United Arab Emirates--had refused to recognize the Taliban.
This part of the memo was advancing the law. The idea of failed states had not been fully incorporated into international law. There was a legal test for the emergence of new states (usually from the collapse of an empire), but no settled approach on their collapse. In two previous conflicts, Somalia and the former Yugoslavia, the United States and its allies had justified intervention on the collapse of governmental authority. If those states were thought to continue in existence, then American intervention in both places likely violated international law. If the United States could intervene in Somalia, Haiti, and the former Yugoslavia, surely it could intervene in Afghanistan to stop al Qaeda.
Failed states pose an international threat because their collapse creates ungoverned territory. Terrorists and international criminal organizations can move in and flourish. Warlords and gangs can violate human rights there on a massive scale. Al Qaeda had been able to establish such deep roots in Afghanistan, where it could gather its personnel, organize its assets, and train for its deadly missions in relative freedom, exactly because there was no real government there. While operatives could set up cells in Pakistan or even Germany, they still needed the support of an area where al Qaeda could establish infrastructure, pool its resources and personnel, and take refuge from the police.
Critics have responded that Afghanistan was not a failed state because the Taliban effectively controlled most of its territory. No doubt the Taliban ran a harsh regime, they argue, but it could only have imposed its fundamentalist religious code because it held authority throughout the country, which is the most important test of whether a state exists. On the other hand, much of that effective control seemed to be exercised by warlords, terrorist groups, and tribal militias, while the Taliban did not perform the basic governmental functions of providing minimal services to the Afghani people. Rather, it carried out systematic human rights abuses against the population and committed severe war crimes against its enemies. Afghanistan's status as a state depended on the facts, and we left that question up to the President and his advisers.
In any event, the President did not need to rest his decision only on Afghanistan's status as a failed state. Even if Afghanistan were a functioning state, and the Geneva Conventions applied, the laws of war still required that the Taliban militia meet the basic rules fo
r fighting forces. The Geneva Convention governing POWs extends protection to "members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power."19 From everything we knew about the Taliban, it did not operate as a regular armed force. It acted more like a mob, without any clear command structure, and its fighters were more likely to be attached to different tribes or warlords than to Afghanistan.
This does not settle the matter though, because Geneva also protects "members of other militias and members of other voluntary corps, including those of organized resistance movements."20 To receive POW status, such militia members must observe the four basic principles mentioned earlier: "that of being commanded by a person responsible for his subordinates," "that of having a fixed distinctive sign recognizable at a distance," bearing arms openly, and "that of conducting their operations in accordance with the laws and customs of war." If there is "any doubt" as to a detainee's status as a POW, the Geneva Conventions call for a tribunal, which in American practice had been satisfied by convening three officers together in the field. This decision would depend on the facts in Afghanistan, which we could not determine thousands of miles away in Washington. POW status was either up to the military on the field, or, as we saw it, the President could examine the operation of the Taliban as a whole and reach a determination.