[1] The wake of the terrorist attacks on September 11, 2001 has
been marked by approaches to law and justice on the part of the
United States government which have the potential for profound
adverse effect. Domestic and international legal orders;
conceptions of human and civil rights; and the balance of
relationships among states, citizens and international
organizations within the rule of law for decades to come may all
feel the impact.
[2] While there are several legal initiatives which can be seen to
be of a piece in this process, the one that most recently has been
the subject of attention is the Military Order for the Detention,
Treatment and Trial of Certain Non-Citizens in the War Against
Terrorism issued by President Bush on November 13, 2001 (the
"Military Order"). The Military Order, issued in the context of the
President's authority as commander-in-chief, established the policy
behind and the criteria for detention and subsequent trial of those
determined to be members of al Qaeda or to have been involved in
international terrorism against the United States. A substantial
number of such persons were subsequently captured, principally in
Afghanistan, and transported to the U.S. Naval Base at Guantanamo
Bay, Cuba. On July 3, 2003, the eve of our national Independence
Day celebrations, the President revealed that he had determined
that six of the "enemy combatants" held at Gauntanamo pursuant to
the Military Order were eligible for trials before military
commissions.1
[3] The framework for judging the detainees was constructed by the
Military Order and a series of subsequent substantive and
procedural military orders. This framework gives the appearance of
having considered traditional fairness issues but like the
authorizations on which they are based, also breaks new legal
ground. In a recently published article,2 The Economist
compared procedures contemplated for the Guantanamo tribunals with
those of tribunals dealing with purported terrorist activities in
Northern Ireland; with special courts in South Africa under the
regime of apartheid; with a U.S. court martial and with typical
U.S. criminal courts. In six out of eight categories, including
such fundamental areas as a defendant's right to know the evidence
against him and the right to lawyer/client confidentiality, the
proposed U.S. tribunals fell short even of South Africa under the
apartheid regime.3
[4] The proposed "legal" framework being constructed for the trial
of the detainees is in some ways an extension of their treatment
since detention began. Cells at Camp Delta,4 a principal detention
facility at Guantanamo, measure less than seven by eight feet and
all prisoners remain in their cells or in interrogation for all but
45 minutes per week. Congregation among prisoners is forbidden and
communication with the outside world is virtually non-existent.
Interrogation procedures are not independently
monitored.5 In
addition to isolation and confinement, conditions are reported as
harsher than those in high security prisons in the United States.
Treatment of detainees has variously been reported to include
hooding, blindfolding, handcuffing and shackling, sleep
deprivation, exposure to loud music and constant bright
lights.6
Amnesty International has labeled the conditions of detention as
amounting to "cruel, inhuman and degrading"
treatment,7
prohibited under international law and by civilized nations.
[5] How has the U.S. attempted to justify the indefinite detention
of these individuals under both morally and legally questionable
conditions? The Bush administration has essentially taken two
different tacks. The first is a geographic one. Guantanamo Bay is
deemed to be a legal limbo geographically. It is not a sovereign
territory of the U.S., but is a long-term leasehold. The U.S. thus
exercises only "complete jurisdiction."8 Under this view, the
detainees are not entitled to the protection of the U.S.
constitution because they are neither U.S. citizens nor on U.S.
soil.9 But
neither, apparently, are the detainees eligible for the protection
of any other sovereign or of an international regime. Thus the U.S.
has attempted to carve out a location that is for all practical
purposes law-free. This in turn logically requires that the
Department of Defense pursue, by issuing military orders and
instructions, a whole new approach to the trials of the detainees,
because in a zone that has been made "law-free" there is no other
possible system to which one could appeal.10 Guantanamo (together with
the undisclosed locations of detention, as well as those military
bases and facilities in the U.S. itself where detainees who are
U.S. citizens are being held incommunicado) comes to constitute, in
legal terms, a piece of an American gulag, governed without
meaningful reference to the rule of law as it is understood and
applied outside that gulag.
[6] In addition to a geographic approach, the U.S. has also
proceeded on the linguistic front. In fact, how the detainees are
"named" has become the real keystone of the administration's legal
arguments. The administration's argument has consistently been that
the detainees are not prisoners of war but rather "unlawful
combatants" or "unprivileged combatants" and hence fall outside of
the purview of established protections that relate to POWs, to
lawful combatants or to other protected classes of persons caught
up in an armed conflict. These protections historically recognize
that under customary international law "engaging in active
hostilities is not a 'crime'-it is an exercise of the combatant's
privilege, to kill before you are killed. . . The basis for human
treatment of POWs is that they are not criminals but sons and
daughters, parents and spouses, through whom states conduct
war."11 The
combatant's historical privilege does not permit him or her to
commit criminal acts during the conduct of hostilities, and for
such acts the combatant can and should be prosecuted. But
prosecutions of these crimes, in the practice of civilized states,
take place with due process and fairness and are based on evidence
that is lawfully obtained.
[7] Under international law, the Geneva Conventions of 1949
control the treatment of persons who are either non-combatants or
are no longer taking part in hostilities during armed combat or
occupation. These Conventions outline a regime of protection for
various classes of such persons depending on their status in
relationship to the conflict or occupation. The United States is a
party to these Conventions,12 and in consequence is bound
by them. Prisoners of War are protected parties under the
Conventions, and the Third Convention deals in some detail with
issues related to who is entitled to POW status and what the
implications of that status are. It is useful to look at the
structural framework that holds the relevant provisions.
[8] According to the terms of its Article 2, the Third Convention
applies in "all cases of declared war or of any other armed
conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by
one of them." It also applies to all cases of "partial or total
occupation of the territory of a High Contracting Party, even if
the said occupation meets with no armed resistance. "As a general
principle, Article 3 of the Third Convention13 requires humane treatment
and provides for minimal rights for all persons taking no active
part in hostilities, "including members of armed forces who have
laid down their arms and those placed hors de combat by sickness,
wounds, detention or any other cause. . ." The minimum rights
include a prohibition on the "passing of sentences and the carrying
out of executions without previous judgment pronounced by a
regularly constituted court affording all the judicial guarantees
which are recognized as indispensable by civilized people."
[9] Who is entitled specifically to the protected status of a
Prisoner of War ("POW") is determined by Article 4 of the Third
Convention. Such persons belong to one or more of six listed
categories. The four categories generally relevant to the detainees
are the following:
1. Members of the armed forces of a Party to the conflict as well
as members of militias or volunteer corps forming part of such
armed forces.
2. Members of other militias and . . . volunteer corps, including
those of organized resistance movements, belonging to a Party to
the conflict and operating in or outside their own territory . . .
[subject to certain additional requirements below].
3. Members of regular armed forces professing allegiance to a
government or an authority not recognized by the Detaining
Power.
4. (Category 6 of Article 4) Inhabitants of a non-occupied
territory, who on the approach of the enemy spontaneously take up
arms to resist the invading forces, without having had time to form
themselves into regular armed units, provided they carry arms
openly and respect the laws and customs of war.
[10] To benefit from inclusion in the second category above,
Article 4 provides that individuals must belong to militias or
other corps that are commanded by a person responsible for his
subordinates, have a fixed distinctive sign, carry arms openly and
conduct their operations in accordance with the laws and customs of
war.
[11] It would seem difficult to argue that those detainees who
formally fought for the Taliban fall outside of the POW provisions.
It is admittedly somewhat easier to make that argument with respect
to those detainees alleged to have been acting for Al Qaeda. But in
either instance (as well as the instance of detainees who in fact
may be found not to have actively fought for either the Taliban or
Al Qaeda, but who were picked up in complete mistake of fact) the
Convention provides further at Article 6 that "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 4, such persons shall enjoy the
protection of the present Convention until such time as their
status has been determined by a competent tribunal." In the
instance of the Guantanamo detainees, no effort has been made to
achieve such a determination.
[12] If persons fall within the category of POW, they become
entitled to certain rights. Among these are the right to humane
treatment (Article 13); to "respect for their persons and their
honour" (Article 14); the right not to furnish information beyond
name, rank, date of birth and serial number (Article 17); and to be
free from physical or mental torture or any other form of coercion
(Article 17). Conditions of internment are also specified. POWs may
not, for example, be held in "close confinement except where
necessary to safeguard their health and then only during the
continuation of the circumstances which make such confinement
necessary" (Article 21). They must be quartered in conditions "as
favorable as those for the forces of the Detaining Power who are
billeted in the same area" (Article 25). They should have access to
canteens, to sanitary facilities, to appropriate hygiene, to
medical personnel and chaplains, to "complete latitude in the
exercise of their religious duties" (Article 34) and intellectual
and physical exercise. They are entitled to be able to write
directly to their families (Article 69), to send and receive
letters and cards (Article 71), to receive supplies (Article 72),
to elect prisoner representatives (Article 79), not to be sentenced
for crimes or subjected to any penalties except those "provided for
in respect of members of the armed forces of the Power who have
committed the same acts" (Article 87). In terms of the protection
of judicial proceedings, among other things, no "moral or physical
coercion may be exerted on a prisoner of war in order to induce him
to admit himself guilty of the act of which he is accused" and "no
prisoner of war may be convicted without having had an opportunity
to present his defense and the assistance of a qualified advocate
or counsel" (Article 99). Further, a POW can be validly sentenced
"only if the sentence has been pronounced by the same courts
according to the same procedure as in the case of members of the
armed forces of the Detaining Power, and if, furthermore, the
provisions of the present Chapter have been observed. (Article
102)."
[13] The complex of rights accorded to POWs is more extensive than
what has been summarized here. The basic philosophies of the Third
Convention attempt to decriminalize acts of soldiers committed as
soldiers and to afford protection to those serving in armed
conflicts, while permitting the prosecution of acts that are
considered to be criminal. It also looks to impose the obligations
of treating "like as like," that is, the standards to be applied to
POWs are typically equivalent to the standards applied to a party's
own military. Given the principles and rights declared by the Third
Convention, it is easy to see why the U.S. administration would be
reluctant to admit that the detainees are POWs. If the detainees
were accorded POW status, they would be entitled to repatriation
under the terms of Article 118 upon the termination of hostilities.
While ascertaining when hostilities have ended in a war that is
open-ended almost by definition is more than challenging, the
argument could certainly be made that hostilities in Afghanistan
have terminated, given the fact that the country is under U.S.
occupation, headed by a regime whose president is guarded by U.S.
Special Forces.
[14] Detainees who are not protected as POWs under the Third
Convention may also be entitled to protected status under the
Fourth Convention,14 which deals with the
protection of civilians during hostilities. Under the terms of the
Fourth Convention, protected persons are "those who, at a given
moment and in any manner whatsoever, find themselves, in case of a
conflict or occupation, in the hands of a Party to the conflict or
Occupying Power of which they are not nationals (Article 4)." Some
people are not considered protected persons, but neutrals who find
themselves in occupied territory are. It is likely that some of the
detainees who do not qualify for POW status may still qualify for
protected person status. Protected status confers fairly extensive
rights, and the number of these rights increases as detainees are
removed to internment facilities. Humane treatment, due process,
freedom from coercion, contact with relatives and diplomatic
representatives, decent conditions of housing and medical care are
all part and parcel of what ought to be expected by those who
qualify under the Fourth Convention for protection.
[15] The protections afforded to combatants (as well as to
civilians caught up in a conflict) whatever their status did not
spring forth from the Conventions. The Conventions rather represent
in most ways the codification of what had been customary in
civilized nations. Attempting to avoid the Conventions' technical
reach does not remove a state from the customary usage and practice
of civilized nations. It is arguable that the protections of the
Protocols to the Conventions, which afford an additional set of
rights, fall within this body of law and practice even though the
United States is not a party to them. Under the provisions of
Article 75 of Protocol I, the Guantanamo detainees would be
"persons who are in the power of a Party to the conflict and who do
not benefit from more favourable treatment under the Conventions or
under the Protocol." Even if the detainees are considered somehow
to fall outside of any of the classes protected under the
Conventions and Protocols, they are still protected by the
provisions of other treaties to which the U.S. is a party,
including in particular the International Covenant on Civil and
Political Rights ("ICCPR").15
[16] The minimum standards guaranteed by the ICCPR at Article 14
include fair, public hearing before "a competent, independent and
impartial tribunal established by law," the "presumption of
innocence," "due process," and the right to appeal to a "higher
tribunal according to law." It is clear at a minimum that the
procedures established by the military regulations proposed for the
tribunals do not come close to meeting this threshold of rights.
Those subjected to hearings before the tribunals (or "commissions"
as they have been formally designated) face what appears to be a
judicial body, but which has no independent existence outside of
the chain of executive command. In fact even rights of appeal are
fully contained within that chain, and such rights to review even
within the closed system that has been established are extremely
limited on their face. They do not include, for example, any review
with respect to the means employed to obtain evidence against a
defendant. They do not permit review of evidentiary rulings, of
procedure, of sentence or verdict. Evidence itself can be secret
and withheld from defense counsel (whose conversations with clients
are not necessarily privileged) and the entire proceeding can be
kept closed to the public. In perhaps what is the most amazing
departure from any established notions of justice, a verdict
favorable to a defendant will not necessarily result in his release
from internment. Thus, coupled with the numerous statements of
members of the U.S. administration concerning the obvious guilt of
the detainees, a page is borrowed from the Queen's pronouncement
with respect to the Knave: Sentence first, verdict afterwards. This
is the classical antithesis to virtually all of the presumptions of
Anglo-American jurisprudence.
[17] The issues raised by the detention at Guantanamo are numerous
and multi-faceted. But from the standpoints of both ethics and the
deeper significance of the law which in many ways both articulates
and shapes our corporate understanding of ethics, they are of a
piece. This coalescence of issues and the stances toward the law on
the part of the U.S. administration-and by extension the American
people-that they reflect is what brings us to a critical juncture
for the direction of the rule of law. This juncture has
implications for the U.S. as a state which has always voluntarily
been subject to the rule of law, for the people of the United
States and their identity and direction and for the global order
itself.
[18] In the international order, legal predictability and
accountability typically have been based on a foundation of
voluntary participation ordered toward a common international good
in which acts of nations have been limited by two ethical notions.
One reason why, as a nation acting internationally, "we don't," is
that we ought not. For a nation governed by laws and not persons
this reason should be adequate to compel corporate behavior. We
"ought not" either because we believe that certain acts are wrong
and destructive, or because we have agreed that "we will not." In
either case we subject ourselves to a legal regime that may have no
way of compelling our behavior, and others depend upon and learn
from that voluntary submission. The United States has been both on
the teaching and the learning sides of this equation at various
times in her history. We ought to fear that we are on neither if
our present course of conduct continues. A second reason why "we
don't" is that if "we did" someone else might also, and in the
event that those actions and reactions occurred, the result would
be disastrous for all nations and all peoples and the rule of law
itself. If we continue our present course of conduct with respect
to the detainees, and with respect to other related ways of acting
in the face of the global threats we perceive, then we run a
serious danger of moving to a position where "we ought" because "we
can" and if "we can," then "we must." The development of this
reasoning as it begins to apply across the world as power,
privileges and alliances shift and break and reform, risks becoming
the foundation of a disintegration of world order, both in concept
and on the ground where those concepts matter desperately.
[19] For the United States as a nation-state there are
implications as well. In part these relate to its place as one
state among many in a world in which security hangs by a very thin
thread, and law may dangle even more precariously. In part they
relate to its perceived, and sometimes actualized, role as an
ideological leader that subordinates its power and possibilities to
its aspirations of justice and freedom. For the United States,
being a power because of military or even economic prowess has
never been fully satisfying. It has rather sought to occupy a moral
high ground among states and to draw others into its ambit not
merely as economic dependencies but as moral fellow
travelers.16
One can argue as to whether such a motive was ever fully at work,
but it is difficult to deny that it has existed in the nation's
self-perception and the conduct that has often resulted from that
self-perception. And it is that moral position which is threatened
by the administration's legal retreat.
[20] The final implications of our course of conduct and line of
argumentation go to our identity, not so much as a nation-state but
as a people. Americans are a people who somewhat uniquely take our
identity from law, not as a concept but as a shaping, formative,
effective reality. We live, historically, in an interplay, in an
imaginative interaction between what we expect of law and what it
demands of us. We yield, individually and collectively, to
decisions with which we disagree. We aspire more highly and embrace
more expansively in the ethos of law than we would in its absence.
We have been willing to rally around a constitutional center across
partisan, economic and social grounds. What happens to a people who
are so fearful that they are willing, with amazingly little debate,
to permit the centering of their identity to give way? The erosion
of identity which of necessity accompanies the erosion of a full
commitment to the rule of law and to principles of justice and
fairness in turn erodes the possibility of vision. With the failure
of vision comes the failure of both character and conduct. The
resulting damage is threefold. It first affects the rights of those
we had all believed to be most protected, that is, those whose only
protection was law and not societal favor. Second, the injury is to
the rights of the whole, to the potential for nurturing a moral
vision and choices that might eventually be made for the good of
the other. Finally and most devastatingly, the damage is to the
soul of the people, and to that soul's capacity to envision and to
effect the possibility of a national ethos based not on fear and
the force that fear always requires to support it, but rather on
hope. The hope is that we can be and will be as we have dreamed
together-a society of law ordered toward mutuality, justice and the
freedom of the human person because of its intrinsic, and therefore
protected, dignity. It is this latter vision, dependent on a
framework of fundamental fairness, which is most at risk; the loss
of this vision for ourselves and for future generations is the
highest cost. No matter what the danger posed by 650 men and boys
who may both wish us and be capable of rendering us grave harm,
even when joined to all the danger posed by their confederates and
ideologies, it can in no measure be as deeply rending and
destructive as the risk of our own denigration of the principles of
law which have served us and formed us and continue to hold before
us what we can become.
End Notes
1 There are generally thought to be approximately 650 detainees at Guantanamo. They are from at least 40 countries. An unknown number of other "enemy combatants" are being held at various undisclosed locations around the world, with the presumption that any trials and/or executions of these latter detainees would eventually also take place at Guantanamo, assuming the absence of the equivalent to what has become known in Israeli practice as "extrajudicial execution."
2 "A Necessary Evil," in The Economist, July 12, 2003
3 The graphic presentation of the conclusions was aptly titled "Perry Mason, this ain't."
4 Other facilities for detention also exist at Guantanamo, including a facility in which children who have been captured are being held.
5 See "Detention at Guantanamo Bay: A Linguistic Challenge to Law," in Human Rights (Winter, 2003).
6 See http://web.amnesty.org/library/pdf/AMR511142003ENGLISH/$File/AMR5111403.pdf.
7 Ibid.
8 The U.S. lease covering the Guantanamo base dates to 1903 and was revised by treaty in 1934. The agreements purport to give the U.S. power to "exercise complete jurisdiction and control" over Guantanamo Bay, while Cuba retains "ultimate sovereignty." In recent years the government of Cuba has repeatedly protested the U.S. presence as illegitimate. The U.S., of course, has not taken kindly to suggestions by Cuba that the Naval Station might be subject to the jurisdiction of anyone other than the U.S. and excludes any incursions of either a legal or physical nature by the "host" country.
9 The issue has been litigated in several venues. See for example Coalition of Clergy v. Bush, brought in federal district court in Los Angeles in which the court relied on the ruling in Johnson v. Eisentrager (339 U.S. 763), a World War-II era case finally decided in 1950, dealing with assistance rendered by German nationals to the Japanese. See also Rasul, et al. v. Bush, et al, and Odah, et al. v. U.S.A. et al, US Court of Appeals for the District of Columbia Circuit, argued December 2, 2002, decided March 11, 2003, No. 02-5251.
10 The base is not law-free with respect to U.S. military personnel, where the established rules and procedures of the military justice system prevail, a system with procedural rights considerably more favorable to a defendant than what has been proposed for the detainees.
11 Michael J. D. Sweeney, "Detention at Guantanamo Bay," in Human Rights Magazine, Winter 2003, reprinted at http://www.abanet.org/irr/hr/winter03/detention.html
12 The U.S. is not a party to the Protocols thereto. While the U.S. did not accord recognition to the Taliban, the state of Afghanistan was (and continues to be) a party to the Conventions.
13 This is a common article to each of the 1949 Conventions.
14 The Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted on 12 August 1949 by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August 1949, entry into force 21 October 1950.
15 The ICCPR entered into force for the United States on September 8, 1992, and the U.S. has not formally notified any derogation from its terms.
16 I borrow a phrase from what was for so long deemed to
be a competing source of authority.
© November 2003
Journal of Lutheran Ethics
Volume 3, Issue 11