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?”
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,
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”.
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
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
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.
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
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.
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.
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.
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.
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.”
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
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.
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
What standards of treatment do we apply? What standards of interrogation
do we apply?
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.
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.
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.
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
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.
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.
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.
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
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.”
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.