Known and Unknown (67 page)

After the toppling of the Taliban, there was no central government in Afghanistan and no functioning criminal justice or prison systems. As coalition forces eliminated pockets of resistance in the early weeks of January 2002, the Northern Alliance was holding hundreds of suspected al-Qaida and Taliban prisoners—including the survivors of the battle at Qala-i-Jangi prison. Most detainees were vetted informally and sent home; others were permitted to join the Northern Alliance. As U.S. forces established a few large bases in Afghanistan, a growing number of detainees began to accumulate in military custody.

Some detainees were supporters of the Taliban who had joined the fight against the Northern Alliance and coalition as foot soldiers. Others were senior Taliban leaders. Still others were foreigners, many affiliated with al-Qaida. They had come to Afghanistan from various corners of the world—the Middle East, Europe, Southeast Asia, and Africa—to conduct jihad against the West and to kill Americans. The origins and records of some of the Northern Alliance prisoners were unclear. These men had been picked up in bad company, and some were terrorists or the terrorists' allies. But others may have been innocent people who happened to be in the wrong place at the wrong time. While we couldn't afford to release dangerous men with important intelligence information in their heads, we certainly didn't want to hold mere bystanders.

In analyzing the legal status of the detainees, government lawyers examined the Geneva Conventions. Updated and refashioned in 1949, the modern Geneva Conventions reflected the fact that Axis powers had committed horrific crimes against noncombatants during World War II. The premise of the 1949 Geneva Conventions is that a civilized and responsible nation, even while fighting and killing enemy soldiers, should abide by humane rules and mitigate the brutality of war. The Conventions regulate the way parties to Geneva are to treat enemy prisoners, setting up a system of incentives to encourage combatants to obey the laws of war and discourage the loss of innocent life.

The architects of the modern Geneva Conventions also envisioned and assumed a degree of reciprocity and mutuality of interest among the warring parties. The Conventions' drafters knew about irregular warfare, such as that of the French anti-Nazi resistance, but they did not have in mind or prescribe rules for asymmetric warfare that deliberately targets civilians—like al-Qaida's large-scale use of suicide “martyrs.” Al-Qaida's videos of beheadings publicly celebrate cruelty, proving beyond a doubt that al-Qaida does not treat detainees humanely, especially Americans.

George W. Bush was not the first president to face the issue of whether terrorists should be granted the protections of the Geneva Conventions. During the Cold War, the Soviet Union and its proxies pushed for adding rules to the Geneva Conventions that would grant such privileges to, and therefore legitimize, Soviet-backed guerrillas. President Ronald Reagan stood firmly against those revisions.
¹⁵
He said the amendments giving irregular combatants the full protection of the Geneva Conventions would “undermine humanitarian law and endanger civilians in war.”
¹⁶
The Reagan administration also was convinced that rewarding irregular combatants with the full rights and privileges of lawful combatants would not only make a mockery of the Geneva Conventions, but would undermine one of their key purposes, which was to protect civilians.

At that time, the
Washington Post
lauded President Reagan's position in an editorial entitled, “Hijacking the Geneva Conventions.”
¹⁷
The
Post
approvingly quoted Reagan: “[W]e must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.” The
New York Times
editorial board agreed, calling the proposal “a shield for terrorists.” It added:

By 2002, both the
New York Times
and the
Washington Post
editorial boards had swung a full 180 degrees in the opposite direction.
¹⁹

Consistent with the Reagan administration precedent, there was broad consensus in the Bush administration and, at least initially, among legal experts across the political spectrum, that the Geneva Conventions did not apply to al-Qaida terrorists in U.S. custody.
^*
The logic was simple: Al-Qaida was not a nation-state and was not a party to the Geneva Conventions.
^†
Its fighters also did not meet the four fundamental requirements for lawful combatant and prisoner of war status in the Third Geneva Convention: operating with a responsible command structure; wearing identifiable uniforms; carrying their arms openly; and obeying the laws of war. Al-Qaida terrorists, by contrast, bombed marketplaces posing as merchants and shop-goers—with explosives under their clothes, in their car trunks, or hidden on children. The nineteen 9/11 hijackers posed as businessmen in suits and commandeered civilian airliners to attack civilians, killing three thousand Americans and citizens from ninety other nations. Such deliberate, surprise attacks on civilian targets demonstrated nothing but contempt for the Geneva Conventions.

I agreed that if the United States automatically accorded the privileges of POW status to every individual captured on the battlefield (or more privileges, such as the right to appeal their detention in U.S. courts), regardless of their compliance with the Geneva Conventions, there would no longer be any incentive whatsoever for enemies to abide by the Geneva rules. Terrorists could have the best of both worlds: all of the advantages of being irregular, unlawful combatants but without any of the consequences. If accorded POW status, terrorists would not be required to give up any intelligence they possessed. Under the Third Geneva Convention, POWs are only obligated to provide name, rank, serial number, and date of birth—the most basic information—when questioned.
^*
That means that even a number of the interrogation methods used every day in police stations across the United States are forbidden. The Geneva Conventions also require that POWs be given access to athletic uniforms, musical instruments, alcohol, tobacco, and the military justice system used by the detaining force.
^†

Because neither Taliban forces nor al-Qaida terrorists met the unambiguous requirements for POW status, they were not entitled to its special protections. This determination was not “abandoning” or “bypassing” the Geneva Conventions as many have erroneously alleged.
²³
It was, in fact, adhering to the letter and spirit of the Conventions. President Bush directed that as a matter of policy the treatment of al-Qaida and Taliban detainees would meet a high standard. He saw this not so much as a legal obligation, but as simply the right thing to do.

The plain words of the Geneva Conventions support the position he ordered, as did the written words of his most prominent administration officials. Indeed, in February 2002, William Taft IV, the senior legal adviser to Secretary of State Powell, advised White House Counsel Alberto Gonzales: “The lawyers all agree that al Qaeda or Taliban soldiers are presumptively not POWs.”
²⁴
Powell apparently felt strongly enough in this case to put his thoughts in writing. His preferred option, he wrote, entailed announcing “publicly” that “members of al Qaeda as a group and the Taliban individually or as a group are not entitled to Prisoner of War status under the Convention.”
²⁵

 

T
hough it was clear that the privileges of the Geneva Conventions did not apply to terrorists, there was serious debate about whether the Geneva Conventions applied in any way to America's conflict with the Taliban regime. The Taliban were the de facto government of Afghanistan, a country that was a party to the Geneva Conventions. However, officials and lawyers in the Justice Department concluded that even though Afghanistan had ratified the Geneva Conventions some years before, the Taliban had not been recognized as that country's government, either by the United States or by most other countries, nor did they actually control a viable nation-state. Because Afghanistan was deemed a “failed state,” Attorney General John Ashcroft and Justice Department officials maintained that the President was not required by law to apply the Geneva Conventions to America's war against the Taliban.
²⁶

Those of us in the Defense Department did not address Justice's legal position, but we had a different view as a matter of policy, perhaps none more strenuously than the Chairman of the Joint Chiefs of Staff. One day in late January 2002, General Myers strode purposefully into my office with a concerned look on his face. Several days before, White House legal memos leaked to the press had given the impression that President Bush might be considering not applying the Geneva Conventions at all in Afghanistan, based on the Department of Justice's legal opinion.
²⁷
Myers felt strongly that it would be a mistake not to apply the Conventions to the Taliban. We couldn't risk the perception that we were discarding long-established rules of international law and our treaty obligations.

I concluded that Myers was correct. Knowing that administration lawyers were weighing in, I wanted to make sure President Bush heard the Chairman's and the Defense Department's views.
²⁸
I asked Rice to set up an NSC meeting on the subject so that we could make the Department's case.

At the NSC meeting on February 4, 2002, Myers and Doug Feith presented our position, which was based on the language and purposes of the Geneva Conventions. We contended that the U.S. government should not use a legal argument to avoid applying the Geneva Conventions to the conflict in Afghanistan. The memo we brought to the meeting set out our position:

• A “pro-Convention” position reinforces [the US Government]'s key themes in the war on terrorism.
  
• The essence of the Convention is the distinction between soldiers and civilians (i.e., between combatants and non-combatants).
  
• Terrorists are reprehensible precisely because they negate that distinction by purposefully targeting civilians.
  
• The Convention aims to protect civilians by requiring soldiers to wear uniforms and otherwise distinguish themselves from civilians.
  
• The Convention creates an incentive system for good behavior. The key incentive is that soldiers who play by the rules get POW status if they [are] captured.
  
• The US can apply the Convention to the Taliban (and al-Qaida) detainees as a matter of policy without having to give them POW status because none of the detainees remaining in US hands played by the rules.
  ²⁹
  

The DoD memo concluded by summing up what we thought the U.S. position should be:

• Humane treatment for all detainees.
  
• US is applying the Convention. All detainees are getting the treatment they are (or would be) entitled to under the Convention.
  
• US supports the Convention and promotes universal respect for it.
  
• The Convention does not squarely address circumstances that we are confronting in this new global war against terrorism, but while we work through the legal questions, we are upholding the principle of universal applicability of the Convention.
  ³⁰
  

Though the Justice Department offered its well-considered legal view, we noted that the Taliban was effectively the government of a country that was a party to Geneva. Our position was that it was “[h]ighly dangerous if countries make application of [the] Convention hinge on subjective or moral judgments as to the quality or decency of the enemy's government.”
³¹
Powell's position, as outlined in his January 25 memorandum, was in line with ours.
³²
The discussion was the sort of thing that I thought would have done the drafters of the Geneva Conventions proud. Justice Department officials were doing their jobs: defining the President's flexibility within the law. And the policy makers in the Department of Defense were doing theirs: making clear that while it is mandatory to stay within the law, not everything that is lawful is necessarily the best policy.

President Bush was apparently persuaded by Myers and Feith's arguments, and on February 7, he set forth his conclusions in a memo.
³³
While he didn't challenge the Justice Department's legal reasoning, he seemed to feel that it risked putting the administration in a position where it could be criticized for not respecting the Geneva Conventions. Ironically, of course, the Bush administration came under exactly that unfair criticism, notwithstanding the fact that the President had explicitly decided that his administration would take a pro–Geneva Conventions stance.

 

I
n a conventional war, detention issues would have fallen under the responsibility of the military commanders in each theater of operations. But CENTCOM commander Franks was reluctant to have hundreds of those captured remain in the theater as his command's responsibility. There were no existing satisfactory Afghan prisons that he could use, nor were there easily discernible front lines behind which detainees could be safely held. The rebellion at the Qala-i-Jangi prison demonstrated the challenge vividly. Additionally, Franks and I agreed that frontline American troops would be better used for counterterrorism missions than as prison guards or interrogators.