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David E. Graham
Executive Director, U.S. Army Judge Advocate General Legal Center and School
"The Treatment and Interrogation of Prisoners of War and Security Detainees: Current Issues"
September 3 , 2004

Let me first provide you with what I hope would be a job saving disclaimer. And that is I certainly do appear here in my personal capacity. I don’t report to represent the views of the Department of Defense, the Department of the Army, or the Army’s Judge Advocate General’s Legal Center and School.

Now having said that, I will attempt to present to you as objectively as I possibly can, the different views associated with this subject because the law can be interpreted in different ways. My approach in discussing this particular subject is that the United States has an obligation to comply with the rule of law- the domestic rule of law, the international law, and specifically with respect to this subject, the law of armed conflict. And I don’t recognize that obligation as a matter of convenience or a matter of choice; I really consider U.S. compliance with the law of armed conflict to be a strategic imperative. Understand that we are talking about two distinct categories of individuals; we’re talking about POWs on one hand of the law – rules, regulations that apply to those individuals - and we are talking about detainees and equally the law, rules, and regulations that apply to those. Status determinations is extremely important when you make succeeding decisions with respect to treatment and with respect to the interrogation techniques that you apply.

I’d like to look first at the individuals taken into captivity in the Operation Enduring Freedom in Afghanistan and then I’d like to take a look at the law, rules, and regulations that apply to those individuals taken into captivity in Operation Iraqi Freedom. From Day one, in the Afghan conflict, which started on October 7, 2001, the U.S. and coalition forces took into custody an exceptionally large number of both Al Qaeda and Taliban captives.

And almost immediately the issue became “What’s the status of these individuals? Do we afford them POW status? Do they get the rights and privileges of the third Geneva convention dealing with prisoners of war or do they fall into another category? Or they in fact, simply detainees?”

Although you won’t find it in a presidential directive or DOD guidance in a formal way, the initial determination was that we’re simply not going to apply the Geneva conventions to this conflict and we’re not going to apply the third Geneva Convention dealing with prisoners of war to Al Qaeda or Taliban individuals, in particular.
That initial decision was driven almost exclusively by the first of three Department of Justice opinions we’re going to be taking a look at. And that Department of Justice opinion was issued on the 22cd of January 2002, aptly entitled “The Law in treaties applicable to Al Qaeda and Taliban Detainees”.

The analysis went a little something like this: in conjunction with Al Qaeda, it said, “Mr. President, Al Qaeda is simply a non-state entity. It’s a non-state actor whose mission is international violence. As a non-state actor, it cannot sign international conventions and because it can’t sign international conventions, it can be afforded no rights and privileges under international conventions, specifically, the Geneva Conventions and more specifically, the third Geneva Convention dealing with prisoners of war. Secondly Mr. President, Al Qaeda is individuals or simply private citizens engaged in belligerent acts against a sovereign state, i.e. the United States and as such, they are unlawful combatants and because of that they’re beyond the realm of international law and they are not to be afforded the rights and privileges of international law, specifically, the rights and privileges of the third Geneva Convention, so they are in fact, not entitled to POW status; they are simply detainees.

Now in this portion of the opinion, the Justice Department also dealt with the legal argument that had been kicking around for awhile and that was a legal argument that went along these lines: What we really have involved here - this conflict between Al Qaeda and the United States - is a conflict of a non-international nature, in other words, common article 3 of the 49 Geneva Conventions. The article that deals with non-international conflicts and the rights and privileges that flow to individuals taken captive during a non-international conflict should be applied in this situation. The State Department dismissed that out of hand saying, “Look at the nature of the conflict involved here. A conflict between Al Qaeda and the United States is not an internal conflict. It’s not a civil war. And accordingly, common article 3 does not apply.” And I think they’re right in the assessment of that particular situation.

They went on then to discuss the issue of the Taliban. And the Justice Department said, “You might consider this to be a more careful question – a closer issue with respect to what the status of the Taliban is, but in reality that’s not true Mr. President. Because when you analyze this, what you can do is simply suspend the applicability of the Geneva Convention to this conflict and more specifically suspend the applicability of the third Geneva Convention to the Taliban individuals in question. Why? Because acting under your Constitutional authority under Article II, you can suspend any, part of, or all of any international agreement acting unilaterally. And here’s why you should consider doing that Mr. President, Afghanistan is nothing more than a failed state. It has no central functioning government. Afghanistan has demonstrated on many occasions it’s either unable or unwilling to fulfill its own international obligations. And thirdly, it has very little, if any international recognition as a legitimate government of Afghanistan. Now alternatively Mr. President, you may simply choose to apply the Geneva Conventions and the third Geneva Convention as a matter of policy as opposed to a matter of law. And having applied the third Geneva Convention to the Taliban individuals simply make a determination that having applied the provisions of the third Geneva Convention, these individuals do not meet the requirements of the third Geneva Convention and therefore are not POWs. So you see the beauty of this Mr. President, you’ve come to the same determination, but you’ve also applied the Geneva Convention in making that determination. The only caveat they add there is that if you choose to pursue this route Mr. President, that’s the recognition that what we have involved here is an international conflict between state parties. So with respect to the Taliban, the analysis was they’re not entitled to POW status; they too should simply be considered detainees under international law.

Now the Justice Department dealt with one other legal argument, this first opinion that I think we need to touch upon and that was the argument that customary international law is present here. Regardless of the decision that the President makes under his own constitutional authority acting under domestic law, you have this international, customary international law obligation because the Geneva Conventions are simply customary international law and are therefore binding on the United States and the President as a matter of international law regardless of the decision that he makes acting in his constitutional capacity.

The Justice Department dismisses that argument as well. It says, “Customary international law is not federal law and therefore is not binding on the president”. On the 7th of February 2002, the president issued a memo to his principal cabinet members – Sec. State, Sec. Def, Chairman of the Joint Chiefs, Director of the Central Intelligence Agency.
Now I think this particular memorandum is so important in terms of understanding the succeeding decisions with respect to status and those decisions driving treatment and interrogation now I want to read what I call the salient points of this memo:
Pursuant to my authority he says, as Commander-in-chief and Chief executive of the United States and relying on the opinion of the Department of Justice stated January 22,2002 and on the recent legal opinion rendered by the Attorney General, I hereby determine as follows: I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with Al Qaeda in Afghanistan or elsewhere throughout the world because among other reasons, because among other reasons Al Qaeda is not a high contracting party to Geneva.
I think that’s probably a valid conclusion.

He then goes on to say I accept the legal conclusion of the Attorney General and the Department of Justice that I have authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly I determine that the provisions of Geneva will apply to our present conflict with the Taliban.

And you say major step in the other direction. Well not to fast. Let me get to that in just a moment. In the next paragraph he said, I also accept the legal conclusion of the Department of Justice and determine that common Article III, and I’ll paraphrase here, is simply not applicable to this conflict because it’s not a conflict of a non-international nature; it is not a civil war. So he accepts that portion of the Justice Department decision.
Let’s go back to that preceding sentence though: Accordingly I determine that the provisions of Geneva will apply to our present conflict with the Taliban.

Again appears to be a step backwards, but then he says almost however based on the facts applied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees unlawful combatants and therefore do not qualify as prisoners of war under article IV of Geneva.

Now obviously if we are going to talk about the analysis that lead to this conclusion, and that’s the second justice opinion rendered the same date, 7 February, a short opinion, this time that dealt specifically with this issue, we need to look at article IV itself. That opinion was entitled: “Status of Taliban Forces Under Article IV of Geneva Convention III”. Let me read you the text of article IV and only the salient portions. Article IV 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:
IV A-1 Members of the armed forces of a party to the conflict
IV A –2 Members of other militia and members of other volunteer core including those who organize resistance movements belonging to a party to the conflict. But here, these individuals have to meet four requirements in order to be afforded POW status and I’ll paraphrase those for you: they have to be commanded by an individual responsible for their actions, they have to carry their arms openly, they have to wear a distinctive symbol recognizable at a distance, and they have to comply with the law of armed conflict.

The Justice Department started its analysis this way: “We have taken a look at Article IV A –2 of the third Geneva Convention and we have made a determination,” and a hand goes up - Wait a minute…How did you get to IV A –2? Why did you bypass IV A-I? What we are talking about here are the members of the armed forces of Afghanistan. Don’t look at IV A –2 and the requirements they have to meet there, they’re simply an armed force.
Justice Department: “No. You’re mistaken about that. What we’re talking about here is simply a loose confederation of militia groups.”

Counterpoint: Who are you to define armed force? Armed force isn’t defined anywhere in the 49 Geneva Conventions. Who are you to dream up a definition of armed force and the fact that they have to comply with the requirements of IV A –2?
Justice Department: We didn’t come up with this definition. We thought surely you would understand that this is a definition that has been derived down through the years in the customary law of armed conflict. And then they go on and say, because of that, we have made a decision that the Taliban does not meet the requirements of IV A –2.
Another hand goes up. This is not a determination that you can make with respect to whether they are or are not POWs. You have an international obligation United States to conduct what we call Article V tribunals. What are we talking about?
Again, let’s go to the text. The present convention should apply to the persons referred to in Article IV from the time they fall into the power of the enemy 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 IV, such persons shall enjoy the protection of the present convention until such timing and status has been determined by a competent tribunal.

So the argument is that you have an international obligation to conduct these Article V tribunals to determine the status of Al Qaeda and Taliban; this is not a decision that you can make on your own. And of course the Justice Department says you’re completely wrong about that. Look at the text of article V. The text says very clearly, should any doubt arise, and the doubt has to arise in the mind of the capturing power, and the mind of the capturing power is reflected here in the determination of the President.

There was no doubt, I can assure you, in the mind of this administration as to what the status of these individuals was; they were unlawful combatants and they were not entitled to POW status.

Let’s return very briefly to the president’s memo because some of the language at the end of this really impacts on future decision-making. I hereby reaffirm the order previously issued by the Sec. of Def. to the U.S. 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. Remember that phrase – consistent with military necessity.
If this was a tort action ladies and gentlemen, I tell you that is probably the proximate cause of the great majority of succeeding decisions that were made with respect to both treatment and interrogation of these detainees.
As you know about 600 individuals were transported to Guantanamo for intelligence purposes. Now, there has been a great human cry at times about the fact that now all we have is a hand full of detainees. They are not entitled to any international protections, none of the Geneva Conventions cover these people; they’re simply detainees.
What standards of treatment do we apply? What standards of interrogation do we apply?

Well I can tell you that very definitive standards with respect to both the treatment of these detainees and the interrogation of these detainees were in existence and had been for years. U.S. service members had been trained on these standards and in fact, these were the standards that were applied initially at Guantanamo.

Let me give you an example of these just to show you how definitive this guidance was. Army regulation 190-A that deals not only with the detainees but prisoners of war and other retained personnel. 1.5A of that regulation provides that all persons captured, detained, and deterged or otherwise else held in U.S. custody during the course of the conflict would be given humanitarian care and treatment. Paragraph 1.5 B specifically provides that all prisoners will receive humane treatment without regard to race, nationality, religion, political opinion, sex, or other criteria. Murder, torture, corporal punishment, mutilation, the taking of hostages, sensory depravation, collective punishments, execution without trial by proper authority, etc. etc. are prohibited. And I would mention that because the Army is the executive agent for the Department of Defense in terms of POWs and detainees, these regulations and this documental guidance that I’ll speak to in a moment applies across the board with respect to all armed forces.

Now you say what about interrogation. Field Manual 34 –52 that deals specifically with intelligence interrogation has been in existence since 1992. What does it say about the very important topic of interrogation with respect to detainees at Guantanamo? Paragraph 1.7 provides that prisoners of war captured in surgence of the civilian attorneys, other persons of intelligence interests are protected by the Geneva Conventions.

1.8 of that same film manual: the Geneva Conventions in U.S. policy expressly prohibit acts of violence or intimidation including physical or mental torture, threats, insults, exposure to inhumane treatment as a means of aid to interrogation. Very importantly, for service members, such illegal acts are not authorized and will not be condoned by the U.S. Army. Acts in violations of these prohibitions are criminal acts punishable under the uniform code of military justice.

So you say what was the problem then? Someone in the fall of 2002 suddenly realized – Wait a minute. All of this regulatory and docural guidance was based on the international requirements of the Geneva Conventions and the President has told us very clearly that the Geneva Conventions don’t apply to these individuals in Guantanamo so that means that all of this regulatory and docural guidance is simply based on policy as opposed to law. There’s no legal foundation any longer for the standards that we’ve set in the past. And we all know that if all of this is a matter of policy, as opposed to a matter of law, the Secretary of Defense can change policy with the snap of his fingers.

Let’s ask Sec. Def if he’ll do that. Somebody else says, “Well, we should at least think as to whether there is some kind of other legal foundation for these standards of treatment and interrogation. Is there anything out there that would legally require us to comply with these standards? and somebody says, “Well I think there’s this thing called a Torture Statute”. Probably we should take a look at the Torture Statute in terms of a legal foundation for these standards.

Well ladies and gentlemen, somebody else had already thought about that. I refer you to a 25 October 2002 memorandum from the Commander U.S. Southern Command to the Chairman of the Joint Chiefs entitled “Counter Resistance Techniques.” He says the activities of JTF (Joint Task Force) 170 – that’s the intelligence activities at Camp Delta in Guantanamo – have yielded critical intelligence support for forces in combat, combatant commanders and other intelligence, law enforcement entities prosecuting the war on terrorism. However, despite our best efforts, some detainees have tenaciously resisted our current interrogation methods. Our respective staffs: the Office of the Secretary of Defense, and JTF 170 have been trying to identify counter-resistant techniques that we can lawfully employ. Thus, I am forwarding JTF170’s proposed counter-resistance techniques.

The Commander of South Com says, “I believe the first two categories of techniques are legal and humane. I am uncertain whether all the techniques in the third category are legal under U.S. law given the absence of judicial interpretation of the U.S. Torture Statute. I therefore request that the Department of Defense and the Department of Justice lawyers review the third category of techniques.

The DOD general counsel sends this memorandum forward on November 27 to the Sec. of Defense: The Commander of South Com. has forwarded a request by the Commander of JFT 170 for approval of the counter-resistant techniques to aid in the interrogation of detainees at Guantanamo. I have discussed this with the Secretary of Defense for Policy and the Chairman of the Joint Chiefs.

I believe that all joined in my recommendation that as a matter of policy, you authorize the Commander of South Com. to employ in his discretion any of the list of techniques that he would advise the Secretary of Defense to sanction. You will recall that was a request at a number of different levels for a fairly extensive legal review, don’t you? It would appear at this point that the DOD general counsel has talked to the Secretary, has talked to the Chairman, and on the basis of that discussion alone, he’s making these recommendations to the Secretary of Defense.

The Slazenger Report saw this as an area for criticism. The Slazenger report faulted the Secretary of Defense for not obtaining a “wider range of legal opinions in a more robust debate before he approved these rules.” The Sec. of Def approves all these techniques on the 2nd of December.

Well as we’ve just indicated, there wasn’t any kind of extensive legal debate even within the Pentagon. And even when the Secretary issued these interrogation techniques, they were met with significant resistance within the Pentagon because many people were unaware that they had been reviewed and they had been approved. And so, as early as January 15th – what happened? The Secretary of Defense resented his memo and then he says, “I am going to request the DOD general counsel to put together a working group to examine this entire issue of interrogation techniques”.
What most people don’t understand I think and I don’t think it’s been reported in the public press is the fact that the working group worked under the guidance that they were to base their analysis, all their recommendations, and their findings on still a third justice opinion that had been issued on the 1st of August 2002 well beyond the request that had been made for a legal review and the suggestion that interrogation techniques could be changed.

So I think we need to take a very brief look at this Justice Department opinion. This opinion has become infamous. This is the opinion that the administration backed away from when it became public in June of this year. The big three issues involved here were the Justice Department’s interpretation of what torture meant and the Torture Statute - I think an extreme interpretation of what torture was and what it was not. Secondly, an exceptionally broad interpretation on the part of the Department of Justice with respect to what the Constitutional authority of president was with respect to simply obviating any domestic law or any international law obligation if he felt it substantially impeded his ability as Commander-in-Chief to conduct a military operation; not conduct war because we know Congress is involved in that, but simply to conduct a military operation. That’s a very broad reading of the President’s Constitutional authority. And third, I think the issue is an issue of the defense in necessity. It says should any service member who engages in these interrogation techniques be brought up on charges for violation of the Torture Statute, he can invoke the Necessity Defense. And the Necessity Defense is linked directly to the President’s authority to simply ignore the law.

So there were many within the working group who challenged this Department of Justice opinion on it’s face. They simply felt that the Department of Justice opinion was wrong on the law. But nevertheless, the direction was that you base your legal analysis on the Justice Department opinion. So the Sec. Def reissues interrogation techniques and these interrogation techniques become public in the press in June; it erupts in June because of the Harbu-Grab issue, which takes me to Iraq.

The Iraqi situation doesn’t present you with a lot of legal issues like Afghanistan did. The law applicable to Iraq is very straightforward and very clear-cut. Iraq was definitely an international conflict. The Geneva Conventions definitely applied as an element of the law of armed conflict. So that every detainee in Iraq was covered by one of two Geneva Conventions: if they were prisoners of war, they were covered by the third Geneva Convention; if they were civilians, they were covered by the fourth Geneva Conventions that deals with the protections of civilians during times of armed conflict.

So ladies and gentlemen, the law is very clear with respect to Iraq. And you say well if the law was that clear in Iraq, what happened in Abu Ghraib? I think it is best summed up and I will end here by simply giving you a short quote from the Slazenger Report and the Faye Jones Report dealt with the same thing. It says, “The changes in DOD interrogation policies between December 2, 2002 and April 16 2003 were an element contributing to uncertainties in the field as to which techniques were authorized. Although specifically limited by the Secretary of Defense to Guantanamo, the augmented interrogation techniques for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.”

I’d probably take a slightly different view. I think the interrogation techniques migrated from the initial days in Afghanistan to Guantanamo and then from both Guantanamo and Afghanistan to Iraq and therefore there was uncertainty in the minds with respect to what interrogation techniques were lawful and which were unlawful; there should not have been. The law was very clear. But I guess the lesson here is that once you cross that interrogation Rubicon, once you beyond anything that was ever of a valid nature before, it’s a slippery slope that’s very difficult if at all possible to recover from.

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