Detainee Policy and the Rule of Law: A Response

by: Robert Knowles

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April 18, 2007

48 Harv. Int'l L.J. Online 69 (2007)

Robert Knowles is Acting Assistant Professor at New York University School of Law. Professor Knowles represents seventeen Yemeni detainees at Guantánamo Bay.

This article is a response to John B. Bellinger, Remarks on the Military Commissions Act, 48 Harv. Int’l L.J. Online 1 (2007), http://www.harvardilj.org/online/91.

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I am not surprised that Mr. Bellinger encounters resistance abroad when he attempts to defend the Administration’s detainee policy.^_[1] Although it’s unfair to expect from informal remarks the clarity and precision of a legal memo, what he offers here—mainly, that the “haz[iness]” of the law applicable to those at Guantánamo and other overseas prisons justifies an ad hoc, evolving approach—is not very convincing.^_[2] He echoes the strained analysis of infamous White House legal memos. He paints a distorted picture of who these prisoners are and how they were captured. And he does not address the main purpose of the policy and the reason it went so seriously awry: it is, at bottom, a botched effort to expand counter-intelligence operations.

In his remarks, Mr. Bellinger frequently mentions that the law in this area is complex; he observes, for example, that prominent scholars do not agree on whether the prisoners should be subjected to criminal process or treated as prisoners of war (“POWs”) under the Geneva Conventions.^_[3] But it is odd to conclude from this, as Mr. Bellinger seems to, that the law should be ignored or selectively applied. Echoing now-familiar Administration arguments, Mr. Bellinger invokes legal authority without acknowledging the corresponding limits.^_[4] He explains that the United States was authorized to detain people at Guantánamo because “[w]e are in a legal state of armed conflict with Al Qaeda,”^_[5] yet the prisoners there “don’t fit under the traditional laws of war” because Al Qaeda is not a nation and lacks a conventional army.^_[6] In truth, the law of war does not recognize such loopholes. Under Article 5 of the Geneva Convention (Third) Relative to the Treatment of Prisoners of War (“Geneva III”), the prisoners are presumed to be POWs, and are entitled to have their status determined, on an individual basis, by a “competent tribunal.”^_[7] But even if they are determined not to be POWs protected by Geneva III, the prisoners must be afforded the protections of the Geneva Convention (Fourth) Relative to the Protection of Civilian Persons in Time of War (“Geneva IV”), including freedom from “physical or moral coercion . . . exercised . . . to obtain information from them or third parties.”^_[8] In any event, all people detained during an armed conflict are protected by the fundamental guarantees of Common Article 3, a provision found in all four Geneva Conventions that prohibits, among other things, “cruel treatment and torture,” “outrages upon personal dignity,” and “humiliating and degrading treatment.”^[9] As the ICRC’s authoritative commentary on the Conventions puts it, “nobody in enemy hands can fall outside the law.”^_[10]

In explaining why the prisoners cannot be tried in civilian criminal courts, Mr. Bellinger repeats the canard that most were picked up by U.S. soldiers “on the battlefield in the middle of a hot war in Afghanistan.”^_[11] Not so. According to a report analyzing the government’s own documents, only five percent of the prisoners at Guantánamo were captured by U.S. forces.^_[12] Most were handed over by the Northern Alliance, tribal warlords, or Pakistani authorities^_[13] amid obscure inter-tribal conflicts with shifting allegiances and offers of $5,000 and $20,000 per-head bounties by the United States.^_[14] Many were captured far from any battlefield. One of my clients at Guantánamo, Jamal Mar’i, was seized from his apartment in Karachi, Pakistan in the middle of the night. He joked to his Combatant Status Review Tribunal (“CSRT”) that he was a “sleeping combatant.” Another client, Abdulsalam al-Hela, was taken from his hotel in Cairo, Egypt by unknown men, held in various secret CIA prisons, and ultimately transferred to Guantánamo. Fifty-five percent of prisoners in Guantánamo are not even alleged to have engaged in a hostile act against the United States or coalition forces,^_[15] and “there are only a very few individuals who are actively engaged in any activities for al Qaeda and for the Taliban.”^_[16] Indeed, the Administration’s definition of “enemy combatant” is so absurdly broad that it would encompass, the government admits, a “little old lady in Switzerland” who sends money to a charity that, unbeknownst to her, turns out to be linked to Al Qaeda.^_[17]  

In crafting its detainee policy, the Administration did not seek merely to adjust for changed circumstances; it sought to avoid all legal accountability. The government revived and then reinvented the pre-Geneva “enemy combatant” category in order to place prisoners, in theory, beyond the reach of the Geneva Conventions.^_[18] As Professor Neuman explains in his response, prisoners were brought to Guantánamo under the (mistaken) theory that it is a law-free zone.^_[19] The Administration has fought tooth-and-nail against federal habeas review, ultimately persuading Congress, in the Military Commissions Act, to attempt to strip habeas rights from those designated by the President as “enemy combatants”.^_[20] Any “evolution” in the detainee policy—to the extent that it has happened since 2002—has occurred only after the Supreme Court rejected the Administration’s extreme legal positions.^_[21] 

Why go to such efforts to avoid legal limits? Although Mr. Bellinger does not mention it, Guantánamo and the other overseas military prisons are centers for interrogation.^_[22] Prisoners are kept in isolation from the world and often each other. It’s now well-known that many of them were subjected to highly coercive, even abusive, interrogation techniques that were borrowed from counter-intelligence operations.^_[23] In fact, at the core of the detainee policy is a misguided attempt to import counter-intelligence methods—once limited to the rarefied and clandestine world of the CIA and “black ops”—into military and law enforcement activities, with catastrophic results for the prisoners and the United States.^_[24]

The consequences of this bungled counter-intelligence project can be seen in the plight of one of my clients, Farouq Ali Ahmed.^_[25] At age seventeen, Farouq traveled from Yemen to Afghanistan to teach the Koran to children. He was captured by Pakistani soldiers, handed over to the United States, and taken to Guantánamo. The most serious accusations against Farouq—and the ones likely keeping him at Guantánamo—are that he was seen carrying an AK-47 and wearing fatigues at Osama Bin Laden’s private airport, and that he was part of an organized group of mujahadeen captured near Tora Bora.^_[26] These allegations derive entirely from the interrogation of Mohamed al-Kahtani, another prisoner who was kept in an “isolation facility” at Guantánamo for 160 days, during which his cell was continuously flooded with light.^_[27] Al-Kahtani was, among other things, questioned for eighteen to twenty hours per day for forty-eight straight days, threatened with menacing dogs, stripped naked in front of female guards, and made to perform dog tricks with a leash around his neck.^_[28] After a few months of such treatment, an FBI agent observed that al-Kahtani was “evidencing behavior consistent with extreme psychological trauma (talking to nonexistent people, reporting hearing voices, cowering in a corner of his cell covered with a sheet for hours on end.)”^_[29]

Despite the unreliability of the evidence against him, Farouq’s CSRT determined that he was an “enemy combatant.” An army lieutenant colonel assigned to be Farouq’s “personal representative”^_[30] during the CSRT proceedings wrote a rare letter of protest to the tribunal: “I do feel with some certainty that [Farouq’s accuser] has lied about other detainees to receive preferable treatment,” he wrote. “Had the tribunal taken this evidence out as unreliable, then the position we have taken is that a teacher of the Koran (to the Taliban’s children) is an enemy combatant (partially because he slept under a Taliban roof.)”^_[31] Although he has not been charged with any crime, Farouq is still at Guantánamo after five years, and he has not been designated as eligible for release.

Obviously, using abusive and illegal interrogation techniques on prisoners makes it difficult to prosecute them, or others that they inculpate, under U.S. law without suspending many of the fundamental protections ordinarily afforded to criminal defendants. Perhaps that is why the MCA permits the use of evidence obtained from cruel, inhuman, and degrading treatment; allows for the use of hearsay; and enables abusive interrogation practices to be shielded from scrutiny by labeling them as “sources, methods, or activities.”^_[32] One hopes that these and other deep flaws in the MCA, including but not limited to the abrogation of habeas corpus, will soon be corrected by new legislation or struck down by the Supreme Court.

Mr. Bellinger asks what should have been done differently. One of his predecessors at the State Department, William Howard Taft IV, warned in early 2002 against ignoring the Geneva Conventions and remarked that the legal advice the President was receiving on how to handle detainees was “seriously flawed,” and that its reasoning was “incorrect as well as incomplete.”^_[33] He later observed that, once the Conventions were abandoned, “it was predictable that those managing the interrogation would eventually go too far.”^_[34] Rather than defending a misguided and failed policy, Mr. Bellinger should follow Mr. Taft’s example and advise the Administration to transform that policy into one that adheres to the rule of law.