[Note: A transcript of this meeting is unavailable. The discussion is summarized below.]
The second session of the “Old Rules, New Threats” roundtable, co-sponsored by the Council on Foreign Relations and the American Society of International Law, addressed the issues of detainees and war, with particular focus on the issue of lawful and unlawful enemy combatants.
What We Know
The discussion began with a presentation of the administration’s legal position. In the global war on terrorism, the unique nature and methods of U.S. adversaries requires the administration to act deliberately to apply the rules of war. In doing so, the administration has drawn a distinction between lawful combatants, who are protected by the Geneva Conventions, and unlawful combatants, who are not protected but who should be treated humanely and receive care in the form of privileges—not rights—consistent with the spirit of the Geneva Conventions. Discussants focused on four issues: the authority to detain, the decision to detain, the rights of the detained and the length of the detention. The administration views its authority to detain enemy combatants as an obligation that is set out in the Constitution, supplemented by Congressional resolution and consistent with historical precedent. The purposes of detaining enemy combatants are, among other things, to prevent further harm and to gather intelligence.
The authority to determine enemy combatant status, including of U.S. citizens, ultimately falls within the president’s constitutional responsibility as Commander in Chief. In the vast majority of cases, determinations of enemy combatant status and decisions to detain are made at the tactical level. The administration has determined that the detainees of the war on terrorism are unlawful combatants and do not qualify for the protections of the Third Geneva Convention. However, the United States has treated and will continue to treat detainees in accordance with the principles of the Geneva Conventions. It is the position of the U.S. government that providing the right to counsel for enemy combatants compromises the government’s ability to gather information and prevent future terrorist attacks. While non-U.S. citizens detained in Guantanamo Bay, Cuba have no right to habeas corpus relief, U.S. citizen enemy combatants detained in the United States may petition for habeas corpus.
The Constitution and the Third Geneva Convention permit the government to detain enemy combatants for the duration of a conflict. In the administration’s view, questions concerning the length of detention for enemy combatants of the current conflict are premature for two reasons. First, the conflict is not over. Second, the administration does not desire to keep detainees longer than necessary.
While no discussant challenged the right of the United States to detain enemy combatants, some questioned the administration’s decision to deprive them of POW status. The discussants argued that granting POW status would not restrain the government’s ability to gather intelligence and that depriving detainees of that status comes at a great cost to the government and international law in terms of reciprocity, public opinion and international norms.
In terms of reciprocity, some discussants argued that the administration would be unhappy if denying POW status to enemy combatants set a precedent used to justify the detention and denial of Geneva Conventions protection to U.S. citizens. While most discussants remain confident that the United States is treating current detainees humanely, several expressed concern that the administration’s approach erodes an international norm. Some discussants maintained that the United States should fully satisfy the requirements of the Geneva Conventions not because to do so constrains its own bad behavior, but because to do so upholds a norm that protects others.
What We Don’t Know
Several participants questioned whether the old laws of war and law enforcement are adequate to maintain security in the face of a new kind of threat. Most discussants agreed that the criminal justice system does not adequately protect against this new threat, and some called for the development of another system, parallel to the criminal justice system and within the spirit of the Geneva Conventions, which can deal with the detention of terror suspects. This proposal led some to question the administration’s current process for detaining enemy combatants and determining treatment. There are many options available for dealing with detainees, including Article III of the Geneva Conventions, the International Criminal Court, the detainees’ home countries, and the laws of war. Satisfied that there was some underlying rationale to the administration’s approach, discussants called on the administration to make the process public.
Underlying much of the discussion was a disagreement about the rationale used by the administration to distinguish between lawful and unlawful combatants. The administration maintains that combatants must earn POW status and that Al Qaeda exempted themselves from the protections normally accorded to enemy combatants by illegally targeting civilians. By holding combatants to standards, the administration feels that it maintained the relevance of the Geneva Conventions. Other discussants disagreed, arguing that the President’s decision to designate unlawful combatants outside the protection of the Conventions because of how they fought arbitrarily disposed of an entire body of carefully-crafted international law. Some discussants criticized the administration for depriving an entire fighting force of the protections of international law because of the behavior of some of its men.
The debate then shifted to the topic of U.S. citizens captured and detained as enemy combatants in the United States. The administration maintains that providing enemy combatants the right to counsel could thwart its ability to collect information and prevent future terrorist attacks. Some discussants expressed concern about the administration’s decision to suspend habeas corpus for detained US citizens. Some strongly suggested that the administration find some alternative form of counsel, perhaps designating judge advocates for the purpose of habeas corpus.
Geography used to serve as a constraint on presidential authority, but because the war on terrorism knows few boundaries, location may no longer be a clear determinant. The oath of office and the U.S. constitution, as well as prudence and inertia, may also limit presidential authority. Still other discussants suggested that the limits to the president’s authority depend upon our trust in the executive. Such limits are faulty for even if we do trust the president, other executives in the world who have not earned our trust may look to U.S. policies to determine their own actions regarding the detention of enemy combatants. In response, other discussants countered that most heads of state will do what they want no matter what the United States does.
What Are the Next Steps?
While the administration maintains that it is pursuing a policy in concert with international and constitutional law, it recognizes that in waging a war against terror they are carving out a place where no extant body of law fits precisely. The United States is looking carefully at other regimes to find a more appropriate way to deal with emerging threats. Several discussants pushed for the United States to go beyond the Geneva Conventions. Current legal regimes can be utilized to maintain security in the face of terrorism, and we should not be so quick to discard them as irrelevant. Any attempt to do so should be accompanied by a clear disclosure about the costs and adverse effects of laying aside legal regimes.
In addition, several issues emerged from the discussion revealing that there is much more to be done. First, in the area of public diplomacy, there is a gap between the administration’s firmly-held belief that it is upholding the Geneva Conventions and the perceptions of many of our allies and friends—as well as many in our own country—who feel that the United States is operating with little regard for international norms. Second, the discussion revealed a paradoxical tension between enforceable treaties and aspirational documents, in that the more enforceable a body of law is, the less flexible the law becomes. A final issue raised by the discussion was a general consensus among the group that the United States is setting precedent. Even if other heads of state pursue actions irrespective of international norms, opposition parties usually try to constrain their leadership by referencing international law.
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