Legal Arguments for Avoiding the Jurisdiction of the Geneva Conventions

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Legal arguments for avoiding the jurisdiction of the Geneva Conventions obviously commenced prior to November 13, 2001, when President George W. Bush issued President's Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism in response to the events of September 11, 2001.

"Iraq's a nation. The United States is a nation. The Geneva Conventions applied. They have applied every single day from the outset." -- Secretary of Defense Donald Rumsfeld. [1]

The President's Order is subsequently referenced by John C. Yoo and James C. Ho in their August 1, 2003, "International Law and the War on Terrorism." Yoo and Ho state that their paper will "identify and discuss two legal questions raised by the war on terrorism that have generated significant controversy among academics and public commentators.

"First, did the September 11, 2001 attacks initiate a war, or 'international armed conflict' to use the vocabulary of modern public international law?
"Second, what legal rules govern the status and treatment of members of the al Qaeda terrorist network and the Taliban militia that harbored and supported them in Afghanistan?"

Yoo and Ho inform:

"In short, the United States government has concluded that the attacks of September 11 have placed the United States in a state of armed conflict, to which the laws of war apply. It has also determined that members of the al Qaeda terrorist network and the Taliban militia are illegal combatants under the laws of war, and so cannot claim the legal protections and benefits that accrue to legal belligerents, such as prisoner of war status under the Third Geneva Convention of 1949."

Note in the following sections of the November 13, 2001, President's Order, as well as the rest of the Order, that no reference is made either directly or indirectly to the Geneva Conventions.

Section 1(e):
To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.
Section 1(f):
Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.
Section 3: Detention Authority of the Secretary of Defense. Any individual subject to this order shall be --
(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;
(b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria;
(c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;
(d) allowed the free exercise of religion consistent with the requirements of such detention; and
(e) detained in accordance with such other conditions as the Secretary of Defense may prescribe.
Section 7(b) With respect to any individual subject to this order --
(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and
(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.

Neil A. Lewis discusses Loo's role in the government's position in his May 21, 2004, New York Times article "Justice Memos Explained How to Skip Prisoner Rights."

In a series of "confidential" memorandums written for the Department of Justice in late 2001 and early 2002, "several of which were written or co-written by John C. Yoo, a University of California law professor who was serving in the department, provided arguments to keep United States officials from being charged with war crimes for the way prisoners were detained and interrogated."

Lewis writes that the memorandum "were endorsed by top lawyers in the White House, the Pentagon and the vice president (Dick Cheney)'s office but drew dissents from the State Department."

Most significantly, Lewis states, the "memorandums provide legal arguments to support administration officials' assertions that the Geneva Conventions did not apply to detainees from the Afghanistan war. They also suggested how officials could inoculate themselves from liability by claiming that abused prisoners were in some other nation's custody."

"One of the memorandums written by Mr. Yoo along with Robert J. Delahunty, another Justice Department lawyer, was prepared on Jan. 9, 2002, four months after the terrorist attacks in New York and Washington." Lewis says that the "42-page memorandum, entitled, Application of treaties and laws to Al Qaeda and Taliban detainees, provided several legal arguments for avoiding the jurisdiction of the Geneva Conventions."

Lewis says that a "lawyer and a former government official who saw the memorandum said it anticipated the possibility that United States officials could be charged with war crimes, defined as grave breaches of the Geneva Conventions. The document said a way to avoid that is to declare that the conventions do not apply."

"The memorandum, addressed to William Haynes II, the Pentagon's general counsel, said that President Bush could argue that the Taliban government in Afghanistan was a 'failed state' and therefore its soldiers were not entitled to protections accorded in the conventions. If Mr. Bush did not want to do that, the memorandum gave other grounds, like asserting that the Taliban was a terrorist group. It also noted that the president could just say that he was suspending the Geneva Conventions for a particular conflict."

In the May 24, 2004, issue of Newsweek, John Barry, Michael Hirsh and Michael Isikoff, in "The Roots of Torture. The road to Abu Ghraib began after 9/11, when Washington wrote new rules to fight a new kind of war," write

"... as a means of pre-empting a repeat of 9/11, George W. Bush, along with Defense Secretary Donald Rumsfeld and Attorney General John Ashcroft, signed off on a secret system of detention and interrogation that opened the door to" allegations of acts of brutality, abuse, and torture.
"It was," they write, "an approach that they adopted to sidestep the historical safeguards of the Geneva Conventions, which protect the rights of detainees and prisoners of war. In doing so, they overrode the objections of Secretary of State Colin L. Powell and America's top military lawyers--and they left underlings to sweat the details of what actually happened to prisoners in these lawless places."
"The Bush administration created a bold legal framework to justify this system of interrogation, according to internal government memos obtained by Newsweek. What started as a carefully thought-out, if aggressive, policy of interrogation in a covert war--designed mainly for use by a handful of CIA professionals--evolved into ever-more ungoverned tactics that ended up in the hands of untrained MPs in a big, hot war. Originally, Geneva Conventions protections were stripped only from al Qaeda and Taliban prisoners. But later Rumsfeld himself, impressed by the success of techniques used against Qaeda suspects at Guantanamo Bay, seemingly set in motion a process that led to their use in Iraq, even though that war was supposed to have been governed by the Geneva Conventions. Ultimately, reservist MPs, like those at Abu Ghraib, were drawn into a system in which fear and humiliation were used to break prisoners' resistance to interrogation."
"By Jan. 25, 2002, according to a memo obtained by Newsweek, it was clear that Bush had already decided that the Geneva Conventions did not apply at all, either to the Taliban or Al Qaeda. In the memo, which was written to Bush by Alberto R. Gonzales, the White House legal counsel ... [who] laid out startlingly broad arguments that anticipated any objections to the conduct of U.S. soldiers or CIA interrogators in the future. 'As you have said, the war against terrorism is a new kind of war,' Gonzales wrote to Bush. 'The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians.' Gonzales concluded in stark terms: 'In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.'"
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